Discriminating Supervisors and Employer Liability

The Supreme Court just answered the question of whether an employer can be held responsible for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.


In Staub v. Proctor Hospital (March 1, 2011), an 8-0 decision written by Justice Scalia, the Supreme Court found that the employer will be held liable for such discrimination in the workplace if: (1) a supervisor of the worker takes a step (writing up a negative evaluation, for example) that is done for a biased reason; (2) that supervisor intends to get the worker fired, demoted or otherwise penalized; and (3) the supervisor’s step is found to be the proximate cause of the ultimate decision -- even if the executive or supervisor who actually carries out the firing or other penalty is someone else, and that person was not at all biased.

The Supreme Court posed the question as follows:

The central difficulty in this case is construing the phrase “motivating factor in the employer’s action.” When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee’s membership in [a protected class such as military service, race or gender], a motivating factor obviously exists. The problem we confront arises when that official has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else.

The Court answered the question in favor of the employee, finding that the employer can be held liable for discrimination:

[I]f a supervisor performs an act motivated by [illegal] 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 [the statute].

The Court did provide one caveat, finding that if the ultimate decision maker conducts his/her own investigation and then takes the adverse employment action "for reasons unrelated to the supervisor’s original biased action" then the employer is not liable.

If you have any questions about a workplace issue, call Charny & Associates, 845-876-7500.

New York's Requirement That You Know Your Rate of Pay

New York State has always had strict laws related to the employer's responsibility to provide information to employees about their rate of pay and the basis for their paycheck. These requirements were made even stronger effective December 10, 2010, when Governor David A. Paterson signed into law the New York State Wage Theft Prevention Act (the Wage Act).

The Wage Act amends New York Labor Law (NYLL) Section 195 with respect to wage notice requirements and requires that employers provide such notices to each employee within 10 business days of hire and on or before February 1st of each subsequent year, in English as well as the employee's primary language, with the following additional information: (i) the basis of the employee's pay (e.g., hourly, weekly, salary, commission), (ii) any allowances the employer intends to claim as part of the minimum wage (e.g., tip or meal allowances), (iii) the employer's name (including d/b/a names), physical and mailing addresses and telephone number, and (iv) any other information the Commissioner of Labor deems material and necessary.


Every New York State employee's pay stub should also include a listing of gross and net wages and deductions, as well as the dates of work covered by the wage payment; rate of pay and basis of the rate of pay; any allowances claimed as part of the minimum wage; and, for overtime non-exempt employees, the regular pay rate and regular hours worked and overtime pay rate and overtime hours worked.

These changes come with increased penalties on employers if they fail to comply with the Wage Law. Employers who fail to provide employees with notices or wage statements in compliance with amended Section 195 are subject to a civil action by the affected employee with penalties of $50 per week for notice violations, up to $2,500, and $100 per week for wage statement violations, up to $2,500, together with costs, reasonable attorney's fees, and other relief, including injunctive and declaratory relief.

Another significant change in the Wage Act is the penalty for failing to pay proper wages due -- instead of 25% additional, the law now mandates 100% additional, which is the same as federal law.

These new requirements all become effective on April 9, 2011.

If you have any questions about these notice requirements, call Charny & Associates for more information.