Staub v. Proctor Hospital And Motivating Factor

The Supreme Court's recent decision in Staub v. Proctor Hospital, Case No. 09-400 (Mar. 1, 2011) discusses the standards for proof of motive in a claim for discrimination based on military obligations. This prompts consideration of the role of motive in all sorts of employment cases.

In Staub, two low level supervisors were hostile to the military reserve obligations of an angiography technician. One of the supervisors gave the technician a disciplinary warning with a directive to report to one of the supervisors when his cases were completed. After it was reported that the technician had violated the directive, the vice president of human resources decided to fire him. The technician complained that one of the supervisors had fabricated the original warning out of hostility to his military obligations, but the vice president adhered to her decision.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and the Department of Labor's USERRA Regulations prohibit employers from discriminating against employees based on military service or the obligation to perform military service. An employee may sue for damages caused by a USERRA violation if his military affiliation was a "motivating factor in the employer's action." Although Proctor Hospital argued that it was shielded from liability because its vice president was not hostile to the technician's military obligations. The Supreme Court rejected the argument, holding that, "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."

The same analysis appears to apply in cases brought against California employers under Title VII and under California's Fair Employment and Housing Act (FEHA). See, e.g., Poland v. Chertoff, 494 F.3d 1174 (9th Cir. 2007); Reeves v. Safeway Stores, Inc., 121 Cal.App.4th 95, 16 Cal.Rptr.3d 717 (2004).

Employers should keep in mind that there are other standards for proving unlawful motive in other types of employment cases.

Where direct evidence of discriminatory intent is unavailable, plaintiffs may prevail in disparate treatment cases under Title VII and FEHA by invoking the burden-shifting approach set forth in McDonnell Douglas. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 8 P.3d 1089 (2000). Under that approach, the plaintiff establishes a prima facie case by showing that (1) he belongs to a racial minority; (2) he applied and was qualified for a job the employer was trying to fill; (3) though qualified, he was rejected; and (4) thereafter the employer continued to seek applicants with complainant's qualifications. That shifts the burden to the employer to provide a legitimate reason for its action, which the plaintiff may then overcome by proving that the employer's stated reason is a pretext for discrimination.

The courts will also entertain disparate impact cases under Title VII and FEHA. Griggs v. Duke Power Co., 401 U.S. 424 (1971); Guz v. Bechtel National, Inc. 24 Cal.4th 317, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000). To prevail in such cases, the plaintiff must identify a specific hiring practice (such as a test) that has a substantial statistically disproportionate effect on a protected group. Even if the employer did not intend to discriminate, it is still liable for discrimination unless it can show that the practice is substantially job-related. The EEOC has adopted Uniform Guidelines on Employee Selection Procedures, which provide guidance for avoiding disparate impact claims.

In cases where there is evidence of both a discriminatory, and a non-discriminatory motive, employers may invoke the mixed motive defense. Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148 (2003); Heard v. Lockheed Missiles & Space Co., 44 Cal. App. 4th 1735, 52 Cal. Rptr. 2d 620 (1996). Under the FEHA, it is a complete defense. In Title VII cases, it limits the plaintiff's remedies.

New FMLA Regulations

The U.S. Department of Labor has issued its long-awaited amendments to its regulations under the Family and Medical Leave Act. Published on November 17, 2008, the new rules will take effect on January 16, 2009. The Department issued a press release that summarizes the changes. The full text of the publication in the Federal Register is available here. The Department has also published a fact sheet that describes the amendments.

The basics of FMLA remain the same, but employers should take note of the following significant changes:

1. The Department has exercised its authority under the new military family leave provisions of the FMLA to define the qualifying exigencies for which employees with relatives who are in the National Guard or Reserves can use FMLA leave as follows: (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) other activities that the employer and employee agree on.

2. When paid leave is substituted for FMLA leave, all forms of employer paid leave (vacation, sick leave, personal time off, and so on) will be treated the same.

3. The regulations revamp the employer notice obligations. Employers must provide (1) a general notice about FMLA rights, (2) an eligibility notice, (3) a rights and responsibilities notice, and (4) a designation notice. The regulations include new forms to assist employers in complying with their notice obligations. The forms (which include ones tailored to the new military family leave provisions) do not yet appear independently on the Department's website, but are included as appendixes to the regulations.

4. The regulations rework the medical certification process, and provide a new suggested form for obtaining certification. California employers should note that the new Form WH-380 medical certification still asks the medical provider for "medical facts" (including "diagnosis") about the employee's condition. A California Family Rights Act regulation prohibits employers from obtaining such information without patient authorization.

FMLA Leave for Military Families

At the beginning of the year, the Family and Medical Leave Act was amended to to permit an eligible employee who is a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness." This provision was made effective immediately.

As with other types of FMLA leave, an employee is eligible for leave only if he or she as 12 months of service, and 1250 hours of actual work in the last 12 months. Employers may require certification of the member's health condition.

Another part of the amendment requires employers to grant leave because of any "qualifying exigency" arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation. This provision will not take effect until the Secretary of Labor promulgates regulations identifying what constitutes a qualifying exigency.

The Department of Labor has included a discussion of planned regulations to implement the military family provisions in the proposed overhaul to the existing FMLA regulations published in the Federal Register on February 11, 2008. You can read the entire proposal here. Comments were due by April 11, 2008. Final regulations implementing the military family leave provisions can be expected by the end of the year.

Until the regulations are in effect, the Department of Labor "encourages" employers to provide leave for exigencies created by a call up. Here are some of the comments from the deliberations leading to the enactment of the amendment, which may provide guidance about the circumstances that would qualify for leave:

"The wife of a recently deployed military servicemember could use the Family and Medical Leave Act to arrange for childcare. The husband of a servicemember could use the Family Medical Leave Act to attend predeployment briefings and family support sessions. The parents of a deployed servicemember could take Family Medical Leave Act time to see their raised child off or welcome them back home." [Rep. Jason Altmire]

"For every soldier who is deployed overseas, there is a family back home faced with new and challenging hardships. The toll extends beyond emotional stress. From raising a child to managing household finances to day-to-day events, families have to find the time and resources to deal with the absence of a loved one." [Rep. Tom Udall]

"Under this amendment family members can use the leave to take care of issues like making legal and financial arrangements and making child care arrangements or other family obligations
that arise and double when family members are on active duty deployments. ... These deployments and extended tours are not easy on families, and two-parent households can suddenly become a single-parent household and one parent is left alone to deal with paying the bills, going to the bank, picking up the kids from school, watching the kids, providing emotional support to the rest of the family. You have got to deal with these predeployment preparations." [Rep. George Miller]