Legal Alert: Supreme Court Clarifies Cat's Paw Liability in Discrimination Claims

REPRINTED FROM: Ford & Harrison Attorneys: Shane Muñoz, a partner in our Tampa office, at smunoz@fordharrison.com
3/2/2011
The U.S. Supreme Court has clarified the standards under which an
employer can be liable for discrimination under the so-called "cat's paw"[1]
theory of liability in a discrimination claim. See Staub v. Proctor Hospital, No.
09-400 (March 1, 2011). The Court held that if a supervisor performs an act
motivated by unlawful animus and intends to cause an adverse employment
action, the employer is liable if the supervisor's act is a proximate cause of
the adverse decision even if the decision maker did not share the
supervisor's animus. The decision was issued in a case brought under the
Uniformed Services Employment and Reemployment Rights Act (USERRA),
but its holding will likely be applied in cases under Title VII and other
discrimination statutes.
The issue in Staub was whether an employer is liable for unlawful
discrimination when a decision maker relies in part on information tainted by
the discriminatory animus of a lower level supervisor, and in part on the
decision maker's independent investigation. Staub's immediate supervisor
and second level supervisor both harbored unlawful animus based on
Staub's military service and falsely accused him of performance deficiencies.
The decision maker was at a higher level than those two supervisors. The
decision maker investigated the alleged performance deficiencies, rejected
Staub's objection that the supervisors' accusations were motivated by
unlawful animus, and also considered Staub's personnel file and other
information. The decision maker decided to fire Staub and he sued, alleging
a violation of USERRA.
A jury ruled in favor of Staub, and Proctor appealed. The United States
Court of Appeals for the Seventh Circuit reversed, because the decision
maker did not depend wholly on the tainted accusations in making the
decision to fire Staub. According to the Seventh Circuit, an employer is not
liable in a cat's paw case unless the non-decision maker exerted "such
'singular influence' over the decision maker that the decision . . . was the
product of 'blind reliance.'"
The Supreme Court rejected the Seventh Circuit's approach. The Court first
pointed out that to establish liability under USERRA, Staub was required to
prove that his military status was "a motivating factor" in the adverse action,
and that there can be multiple motivating factors. The Court then analyzed
the lower level supervisors' actions, noting that the jury had found that they
made their false accusations because of unlawful animus, and finding that
they intended that their accusations would result in adverse action against
Staub. The Court further found that Proctor had effectively delegated the fact
finding portion of the decision maker's investigation to the biased supervisors
and that the false accusations were one factor in the decision to terminate.
Because the false accusations were the product of unlawful animus and
were a motivating factor in the discharge decision, they were a proximate
cause of the discharge and Proctor could be liable, even though other
factors might be additional proximate causes.
Nonetheless, the Court agreed that Proctor could avoid liability if it could
establish that the decision maker's investigation resulted in the discharge for
reasons unrelated to the supervisors' original biased action. While this
affirmative defense can be a complete defense to liability under some
discrimination statutes including USERRA, under other discrimination
statutes, including Title VII, it would be only a partial defense.
Employers' Bottom Line
The Court's decision potentially expands the scope of liability under the
"cat's paw" theory. Thus, it is more important than ever for employers to
conduct thorough and independent investigations of discrimination
allegations and properly document those investigations. It is also important
to ensure that adverse employment actions are taken for legitimate,
nondiscriminatory reasons, which are factually supported and appropriately
documented.
If you have any questions regarding this decision, please contact the Ford &
Harrison attorney with whom you usually work or the author of this Alert,
Shane Muñoz, a partner in our Tampa office, at smunoz@fordharrison.com.
[1] The term "cat's paw" is derived from a 17th century fable in which a
manipulative monkey convinces an unsuspecting cat to retrieve chestnuts
from a fire. The cat burns its paw getting the chestnuts, while the monkey
devours them one by one. In discrimination cases, courts have used this
term to describe the imposition of liability on an employer for the
discriminatory animus of a non-decision maker where that person so
influenced the decision maker that the decision maker was nothing more
than a puppet or "cat's paw" for the biased non-decision maker.

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Six Tax Tips For The Self-employed

Reprinted From: JDSUPRA
By: Law Offices of Darrin T. Mish, PA 
http://www.getirshelp.com/irsblog

 
People who run their own businesses, are a sole proprietors of a trade or business or operate as independent contractors are considered selfemployed. If you are self-employed you would typically fle Form 1040 and in addition also IRS Schedule C, Proft or Loss From Business or Schedule C-EZ, Net Proft From Business.
 
Here are 6 tax tips for you:
1. Self-employment also includes work you do outside of your regular fulltime job like a work-from-home part time activity done in addition to your regular job.
2. Your self-employment tax is a social security and Medicare tax similar to social security and Medicare taxes withheld from the salary of wage earners. You can calculate your own self-employment tax using Form 1040 Schedule SE. You can also deduct half of your self-employment tax when you calculate your adjusted gross income.
3. As a self-employed person, you should make quarterly estimated tax
payments, otherwise you may be penalized at the end of the year for underpayment. These tax payments are payable even if you have a regular full-time job where your salary is subjected to withholding tax. The http://www.getirshelp.com/irsblog/ quarterly estimated tax is the means to pay your taxes for income that is not subjected to withholding tax.
4. The running costs of your business, known as business expenses, are deductible. You do not have to capitalize them or include them in the cost of goods sold.
5. To deduct any business expense, make sure that the expense made is ordinary and necessary. Ordinary means it is commonly made in your industry. A necessary expense is one that is helpful and appropriate foryour business. Necessary does not imply indispensable.
6. If you need more information, you can get it from IRS Publication 334, Tax Guide for Small Business, IRS Publication 535, Business Expenses and Publication 505, Tax Withholding and Estimated Tax.
These are available at the IRS website, www.irs.gov or by calling the IRS forms and publications order line at 800-TAX-FORM (800-829-3676).
http://www.getirshelp.com/irsblog/

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The Joke's on You: 7 April Fool's Pranks that Ended with a Pink Slip

Published: Tuesday, March 29, 2011 5:07:04 PM GMT  

REPRINT FROM: VAULT.COM

Who doesn't like a good April Fool's prank? Well, according to the Museum of Hoaxes, plenty of employers. While pulling one over your co-workers and even the boss can encourage laughter, camaraderie and a great working environment, it might be wise to ask a trustworthy friend's opinion on your idea’s true humor value before you get prankin'. Why, you ask? Take these April Fool's pranks gone wrong as precautionary tales -- or run the risk of the pink slip, arrest and embarrassment.

Pushed to the Limit
Ever work yourself into a frenzy worrying about a deadline? That is exactly what happened when Glenn Howlett's coworkers sent him a memo saying his big report was due early. The "hint" to Howlett should have been the April 1st date on the memo – unfortunately, Howlett received the news while on vacation and didn't clue in. He cut his vacation short, gathered up the troops and prepared to get to work. However, as the new deadline approached he worked himself up into a panic and started experiencing heart palpitations. He finally collapsed from stress and had to take a leave of absence. When he finally found out this was all due to an April Fool's prank, he sued the company, resulting in a company-wide ban on future pranks.

A Fool’s Joke Indeed
After two weeks on the job at a clothing store in Columbus, Ohio, Sitra Walker decided to spice up the routine and called her manager at home to tell him armed men were robbing the store. Unsurprisingly, the manager's next move was to call the police. Walker -- a woman with poor timing as well as poor humor -- called her manager back minutes after the police were dispatched, screaming "April Fools!' Not only was she charged with inducing a panic, her manager gave her walking papers.

Terror Alert
You can see how this April Fool's prank started out amusing, especially for two teenage boys. Two 18-year-old coworkers at Westlakes in the U.K. decided to pick up and move another coworker's car from one parking lot to another. This should have simply ended in some frustration and a few laughs -- unfortunately they unintentionally moved the car into a restricted parking lot for a nuclear services industry. This resulted in the nuclear company evacuating its entire staff, fearing a terrorist threat. When the truth came out, the pranksters were arrested for unlawful taking of a vehicle and a bomb hoax, as well as suspended from work.

Zap!
Do you ever just get the urge to, let's just say, zap a coworker? Canine officer Chris Peters from Jamestown, TN, went ahead and zapped away—at both a coworker and a civilian. Peters used a stun gun on loan from the county constable. No one else was laughing, especially when the civilian ended up in the hospital. Peters was suspended for three days without pay for the "prank".

Dirty Minds
Think pollution is bad in your neck of the woods? In 1982, Greece's state-controlled National Radio Network broadcast a warning that pollution had reached emergency levels in downtown Athens, and told their listeners the city would need to be evacuated immediately. Not only that, those driving cars were asked to abandon their vehicles and flee into open areas. As Athens is known for its pollution problems, many of these listeners took the broadcast seriously. The network soon went on the air to reveal the joke, but it was too late for the city’s sense of humor – one man sued for mental distress to the tune of $820,000, the director of the network resigned, and the original prankster was fired.

Fiery Fun
Well, who doesn’t think the potential of lava pouring into your home is funny? This must have been the mindset of Boston’s Channel 7 pranksters when they ended a 1980 news broadcast with a special bulletin: The Great Blue Hill – a 635-foot hill in Milton, MA – had erupted and lava and ashes were raining down from the skies. Supposedly a chain reaction from the then-recent eruption of Mount St. Helen’s, the channel played an audio tape of President Carter and the Governor of Massachusetts declaring the eruption a “serious situation.” Footage was shown of lava pouring down the hill. Once again ill-timed, the reporter ended the segment holding an “April Fool” sign, but not in time to squelch the flood of frantic phone calls from viewers. One man, so convinced, even carried his sick wife to safety. Later that night, embarrassed by the tumult their prank had caused, Channel 7 apologized and the executive producer responsible was fired.

And the Worst Fool of All…
The Opie and Anthony Show gets the award for the April Fool’s joke in poorest taste. In 1998, the duo announced on the air that the mayor of Boston, Thomas Menino, had been killed in a car accident in Florida. The mayor’s daughter, believing the news to be true, called the station and things quickly went south from there. The two hosts were terminated the next week, though it came out later that the pair purposefully caused the controversy to get out of their contract early.

--Padmini Mangunta
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Email Privacy: Could Your Work Communications Be a Career Time Bomb?

Posted on Wednesday, March 30, 2011 4:38:13 PM GMT   |   Post a comment
REPRINT FROM: VAULT.COM

Before you send your next email, stop and think who you'd be comfortable seeing it—and in what context. The tool is now so ubiquitous that most business professionals think nothing of syncing their phones with their corporate accounts, enabling them to handle a variety of tasks even while they're away from the office. Inevitably, under such circumstances, the lines blur—and most of us will end up sending a non work-related email or two from our work accounts. Big deal, right?

As it turns out, it just might be—as a scuffle in Wisconsin over email records proves. The case, for those who missed it, centers around University of Wisconsin professor William Cronon, who has been voluble in his criticism of Wisconsin Governor Scott Walker's highly-publicized attempts to strip collective bargaining rights from selected state employees.

After a recent New York Times editorial criticizing Walker and state Republicans, Cronon found his University email was the subject of a Freedom of Information Act request—from a state Republican party official. All of which is perfectly legitimate under Wisconsin's transparency laws--but frightening nonetheless for employees who may not always have been as scrupulous as they should in choosing their channel of communication.

The tactic—which Cronon thinks represents "an academic freedom issue"—is catching on elsewhere too. Talking Points Memo points out that a Michigan-based think-tank has submitted FOIA requests to a host of Michigan state schools, based on a host of keywords related to the Wisconsin dispute.

Again—the requests appear to be completely legitimate under existing law, and it's pleasing to know that such transparency is possible—even if only in the public sector.

But the issue should also give anyone who uses email—everyone, in other words—pause for thought. It may well be the case that all of these employees are just a single email away from damaging their professional reputations, or losing their jobs.

Think again about your own email use. Can you honestly say that you've never sent anything that could get you in trouble if someone was motivated enough to go digging through your archives? Or—worse—something that could be taken out of context (deliberately or otherwise) to make you look bad?

Whatever you might think of the politics behind the FOIA requests, there's one outcome from these cases that is likely to stretch across party lines: a greater awareness by employees in all sectors that they need to be exceptionally careful about separating their personal and private communications. Whether that's really the best outcome for anyone concerned is open to question.

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5 Rules on Cultivating Power

February 18, 2011 4:06 pm
Reprinted from: CNNMoney.com
Here are some commonsense rules to let you get out of your own way and thrive in today's business world.

By Jeffrey Pfeffer, contributor

(ManagementInnovationeXchange) -- Here are some commonsense, yet often violated, rules about power that can help make you more successful—and, even better, equip you to cope with today's organizational realities.

1. You need to take care of yourself. Companies have been telling employees this for decades. The implication: don't worry about the company, because it isn't worrying about you. You are responsible for attracting the support that will make you successful and building your personal brand.

2. Companies (and many people) worry more about what you can do for them in the future than what you have done for them in the past. VC partners who have made their colleagues billions are thrown out unceremoniously. The same goes for law partners, management consulting partners, and public accounting firm leaders.

Don't expect thanks for all you have done for your company or your colleagues in the past. Your job is to ensure that you are useful -- through your role, the resources you control, your contacts and network, your reputation -- to those around you as they contemplate their future. The minute you aren't, your influence will be either gone or substantially diminished.

3. Perception is reality -- so get a public relations strategy and get help where you need it. I have seen junior people build their reputations and visibility by writing articles, reaching out to journalists, cultivating media, and generally becoming known. It is never too early to start building your image.

4. Don't worry about what comes "naturally." I have people tell me they aren't natural networkers, they find self-promotion distasteful, and they have difficulty asking for help. My answer: Skiing isn't natural; neither is speaking a foreign language or playing a musical instrument. Studies of genius show that individual talent matters but that practice and getting good coaching matters even more. Don't find excuses for not doing what you know you should because it doesn't feel "natural." Once you practice and get good at something like networking, it will become natural!

5. Stop worrying about what others think about you -- worry about building your power base, and you will have more friends that you will ever need. Yes, likeability can build power, but once you have power, lots of people will like you. The late George Steinbrenner of the New York Yankees was clearly not a "good boss," but his success brought fame, praise, and no shortage of people willing to work for him and curry his favor.

The biggest barrier to having power is our inhibitions about what we are willing to do -- and how hard we are willing to work -- to become successful. Get out of your own way, and watch what happens.

Jeffrey Pfeffer is the Thomas D. Dee II Professor of Organizational Behavior at the Graduate School of Business, Stanford University where he has taught since 1979. He is the author or co-author of 13 books and a contributor to The MIX .

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Tips for Developing High-Potential Talent

By Dr. Woody
Published March 28, 2011 | FOXBusiness

A survey conducted by Right Management in November 2010 found that 84% of employees intend to leave their jobs in 2011.
This astounding number raises serious concerns for business owners and managers as turnover can be very costly. Add to this that those employees most likely to leave are typically the ones you want most to retain. They are your high-potential performers who are hungry for opportunity and willing to do whatever it takes to get to the next level.
To combat this impending exodus of top talent, employers are going to have to engage these rising stars and find ways to provide them with the kinds of opportunities that will keep them stimulated and on a path to success under their payroll.   
According to Nathan Hiller, assistant professor of management and faculty director of the Florida International University Center for Leadership High Potential Program, high-potential employees (HI-POs for short) are “those employees with the potential to reach fairly senior levels in the organization. They are your future managers and executives.” For this reason, organizations must identify their HI-POs and ensure they are being properly groomed. The future of your company will depend on HI-PO’s readiness to lead. 
Spotting HI-POs isn’t always easy. Hiller points out that it’s not just about strong performance or time on the job; it’s about the quality of learning that has occurred. Moving to the next level requires a capacity for managing others and the ability to think strategically, something not all top performers are necessarily suited for. Developing leaders takes time and money, so it’s important managers focus their efforts on those with the most potential to succeed.    
When it comes to developing HI-POs, many companies don’t have formal mechanisms in place. Thus, it’s up to managers and executives to get creative and find informal ways of facilitating the growth of Hi-Pos. To help with this, Hiller shared a few tips:        
Encourage Self Insight: According to Hiller, “one of the key mechanisms for developing high-potential talent is encouraging critical self insight.”
Leadership is about influencing others to take action and influence starts with self knowledge; you have to know yourself before you can know and influence others. Part of the transition to management is learning to step back and work through people as opposed to doing it yourself. HI-Pos need to build self awareness by seeking out critical feedback from colleagues and key constituents. Managers should also consider the use of personality and values assessments, these tools are a great way to help HI-Pos  gain personal insight.    
Give Stretch Assignments: Making the leap from line producer to manager or from manager to executive requires stretching beyond comfort zones. Managers should identify one or two key competencies that HI-Pos should develop and find an assignment that will afford them the opportunity to demonstrate those competencies.    
Facilitate Interaction: When I worked for PricewaterhouseCoopers, I was in an office with more than 1,000 people. Needless to say, it wasn’t the coziest environment.  The management team was constantly challenged to come up with ways to encourage meaningful interactions between key contributors. This challenge is certainly not unique. Companies, both large and small, struggle with connecting their own people.
Facilitating interaction is critical to leadership development because it allows for the exchange of ideas as well as the development of critical relationships. This is particularly important when it comes to HI-Pos because these individuals will ultimately have to work together to make critical business decisions. Managers should take the time to identify opportunities to get HI-Pos  together. Consider such things as quarterly meetings, informal get togethers, or special projects that will allow for regular and meaningful interactions.      
Leadership is something that must be continually developed. It’s up to managers and executives to identify and cultivate high-potential talent. Taking the time to raise HI-Pos as the future success of organizations will ultimately depend on their ability to lead.

Michael “Dr. Woody” Woodward, PhD is a CEC certified executive coach trained in organizational psychology. Dr. Woody is author of The YOU Plan: A 5-step Guide to Taking Charge of Your Career in the New Economy and is the founder of Human Capital Integrated (HCI), a firm focused on management and leadership development. Dr. Woody also sits on the advisory board of the Florida International University Center for Leadership. Follow Dr. Woody on Twitter and Facebook
 

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