An employer can be liable for violating the Uniformed Services Employment and Reemployment Rights Act (USERRA) when an adverse employment action is influenced by a biased supervisor who intentionally tries to cause the action, ruled the U.S. Supreme Court. In this case, a supervisor and her boss were frustrated by a hospital technician’s need for intermittent military leave. The supervisor said she wanted to get rid of the employee because his military leave put a strain on the department. She wrote him up for allegedly leaving his work area without permission. Her boss (despite reasonable explanations from the employee) then informed the VP of HR that the employee had repeated the offense. The VP reviewed the technician’s personnel file and decided to fire him. The employee sued under USERRA.
The employer argued that it shouldn’t be liable, since the VP of HR had no idea of the anti-military bias of the supervisor and her boss. But under USERRA, if membership in the military is a motivating factor in an employment decision, then the employer is liable unless it can show it would have taken the action regardless of the employee’s military status. The Court said the VP’s innocence was irrelevant—what mattered were the biased actions of the supervisor, and the fact that those actions directly caused the termination (Staub v. Proctor Hospital, U.S., March 2011).
Tips: Having an HR person or upper level manager review major disciplinary actions, particularly termination decisions, is a wise step. The Court’s decision shows, however, that taking a supervisor’s version of events at face value may get the company in hot water. If possible, the reviewer should make a fresh evaluation of the facts, including getting the employee’s side of the story, before making a final decision.
