Justices Examine Anti-Military Bias Case

WASHINGTON (CN) - The Supreme Court heard arguments Tuesday on whether an employer can be held liable for discrimination when workers with an alleged anti-military bias influenced their company to fire a U.S. Army Reservist.

Vincent Staub filed suit for employment discrimination after being fired, saying two ranking members in his department disliked his military obligations and gave him warnings that led to his termination.

Staub's attorney, Eric Schnapper, said the decision to fire Staub was a series of decisions "all of which are government action" for which the employer was liable. He said the definition of "employer" included anyone acting on behalf of the employer, including Staub's coworkers.

Justice Samuel Alito presented a hypothetical situation in which an employer fires a worker after looking at a set of evaluations from the past 10 years, one of which was written by someone with an anti-military bias. Alito asked if that would present a prima facie case against the employer.

Schnapper said yes, it would.

"Even if the employer ... made every reasonable effort to investigate the validity of all the prior evaluations, still the employer would be on the hook?" Alito asked.

"Yes," Schnapper said.

"Well, that's a sweeping rule," Justice Anthony Kennedy said.

Alito said the natural reading of the law was that if anti-military feeling was a motivating factor in the decision to fire someone, the employer can be sued, but the "motivating factor" has to directly affect the person who actually makes the decision.

"Now, I'm not suggesting that's the right rule," Alito said to Schnapper. "That's a very unattractive rule. But the rule that you have suggested is also a very unattractive rule, one that I doubt the Congress intended to adopt. Is there no reasonable middle position here? It's all or nothing?"

Roy Davis, the attorney for Staub's former employer, Proctor Hospital, agreed with Alito's natural reading, saying the only employee who could make the employer liable was the one who made the actual employment decision, unless they were overwhelmingly influenced by someone else.

"You have to get us to believe," Justice Antonin Scalia said, "and I'm not sure we will -- that motivating factor in the decision refers to motive on the part of the person who made the decision. That's essentially your point, isn't it?"

"Yes," Davis said.

Justice Sonia Sotomayor asked why an employer could not be held liable for an incident demonstrating anti-military bias against the employee dating farther back.

Davis said it would lead to a "never-ending chain of looking backwards all the time" to "scour the record" to look for actions that could have caused the termination.

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