On March 1st, 2011, the U.S. Supreme Court decided that a lower-level supervisor’s discriminatory motive in proposing disciplinary measures against an employee can form the basis for liability under the anti-discrimination laws in employment like Title VII of the Civil Rights Act of 1964 and the Uniformed Services Employment and Reemployment Act of 1994 ( USERRA ). This is known as a Cat’s Paw theory of liability for employment discrimination, as the lower-level supervisor proposes disciplinary action against an employee for an improper motive but the decision-maker may not have a discriminatory motive but relies upon the lower-level supervisor’s recommendation. While the actual decision-maker lacks a discriminatory motive, the decision is still tainted by the lower-level supervisor’s discriminatory motive. As long as the lower-level supervisor’s act, which was motivated by an unlawful discriminatory motive, is the proximate cause of the adverse action, like termination or a suspension, then the employer may be held liable for a violation.
This analysis can also apply to make discriminatory performance reviews that result in adverse action like termination, suspension, failing to promote, actionable where the reviewing supervisor gives negative remarks out of an unlawful discriminatory motive.
In Staub, the issue was related to an employee’s military leave, and the decision was made under the USERRA law, but the Supreme Court also discussed how the law would be applied in other areas of employment discrimination claims.
According to the White House, the President signed H.R. 3219, the Veterans’ Benefits Act of 2010, on October 13, 2010. The law amends the USERRA, making changes in several veterans’ affairs programs and benefits including: (1) insurance; (2) disability compensation and pension; (3) education, employment, and small business; (4) housing and homeless veterans’ programs; (5) memorial affairs; (6) civil relief issues; and (7) construction. The "employment" benefits are the USERRA amendments.
If a servicemember’s or a veteran’s rights under the USERRA law are violated, remedies may flow from two different processes. The first is the administrative route (handled by the United States Department of Labor, VETS). The second is the litigation route (handled by private litigation initiated by the servicemember/veteran or his or her attorney in the courts. Alternatively, the U.S. Attorney General or the Office of Special Counsel may file litigation on behalf of the servicemember or veteran. Remedies may differ depending on which route is chosen.
Remedies available through the administrative route can include:
- Return to a job
- Back pay
- Lost benefits
- Corrected personnel files
- Lost promotional opportunities
- Retroactive seniority
- Pension adjustments
- Restored vacation
If an individual is claiming entitlement to employment rights or benefits or reemployment rights or benefits and alleges that an employer has failed or refused, or is about to fail or refuse, to comply with the Act, the individual may file a complaint with VETS or initiate a private legal action in a court of law (see § 1002.303). A complaint may be filed with VETS either in writing, using VETS Form 1010, or electronically, using VETS Form e1010 (instructions and the forms can be accessed at http://www.dol.gov/elaws/vets/userra/1010.asp). A complaint must include the name and address of the employer, a summary of the basis for the complaint, and a request for relief.
Filing a complaint with VETS is not required before pursuing a claim in the courts.
The courts can require the employer to comply with the law and restore all compensation referred to above. Where violation is considered willful the court may double any amount due as liquidated damages. The court may NOT, however, impose any punitive damages under USERRA. See 20 CFR Part 1002.312 and 20 CFR Part 1002.313.
While the USERRA itself does not state a time limit in which one must file an administrative complaint or file a lawsuit to enforce these rights, some courts impose limitations based on other laws. One court has said that the claim must be filed within 4 years, while others have considered whether the delay in time has caused such prejudice to the employer that the claim must be dismissed. The point taken should be that you should not delay in taking action to enforce your rights or you could lose these important rights and remedies.