EJS Joins Lawyers’ Committee in Filing Brief with U.S. Supreme Court in Staub v. Proctor Hospital

The Equal Justice Society joined the Lawyers’ Committee for Civil Rights Under Law and AARP in filing an amicus brief (PDF available for download here) in the Supreme Court of the United States supporting the petitioner in Staub v. Proctor Hospital.  The brief urges the Court to recognize employer liability for the unlawful bias of a supervisor if the bias was a significant motivating factor for an adverse employment practice, even if the ultimate decisionmaker – someone other than the supervisor — harbored no discriminatory motive toward the employee.  This is an important question that Justice Alito also raised in the recent Supreme Court decision, Ricci v. DeStefano, but that has not yet been resolved.

The petitioner, Vincent Staub, a member of the Army Reserves, was a hospital technician at Proctor Hospital for fourteen years until his dismissal in 2004, which he argues was motivated by discrimination based on his military status.  Multiple supervising officials were hostile towards Staub for his involvement in the military and although the Court of Appeals for the Seventh Circuit acknowledged that “there can be little dispute that… [Staub’s supervisor] didn’t like Staub, and that part of this animus flowed from his membership in the military,” the Court refused to recognize the animosity of nondecisionmakers, such as Staub’s supervisor, without a showing of “singular influence” over the ultimate decisionmaker, a different official who was responsible at the last stage for handing Staub his pink slip.

While singular influence could include concealing or fabricating relevant information given to the person who ultimately makes the decision to dismiss an employee, the Court stated that it would not matter if the information came from a potentially biased source as long as the decisionmaker appeared to conduct her own independent investigation.

By focusing on the ultimate decisionmaker, standards such as the one applied by the Court in Staub effectively legalize unlawful action in all phases of the decision-making process except the last stage.  The amicus brief argues that a “motivating factor” standard should be applied in cases like these, similar to what is used in other cases involving protection against discrimination, like Title VII of the Civil Rights Act of 1964.

Just as Title VII protects against discrimination on the basis of race, sex, religion, national origin, or ethnicity, the Uniformed Services Employment and Reemployment Rights Act (USERRA) at issue in this case protects against discrimination on the basis of military status.  Recognizing employer liability for adverse employment actions motivated by unlawful animus on the part of supervisors is important to prevent discrimination that may be occurring behind-the-scenes.  To fully carry out the purposes of USERRA and Title VII, the whole employment process should be free from bias.

The law firm Fried, Frank, Harris, Shriver & Jacobson LLP and the Civil Rights Appellate Clinic at Pennsylvania State University Dickinson School of Law provided pro bono assistance.

Barbara Caulfield, Dorothy Ehrlich and Mona Tawatao Join EJS Board of Directors

The Equal Justice Society board of directors earlier this week approved the appointments of three new directors: former U.S. District Judge Barbara A. Caulfield, National ACLU Deputy Executive Director Dorothy M. Ehrlich and Legal Services of Northern California Regional Counsel Mona Tawatao.

Barbara, Dorothy and Mona join the existing directors:

• Board Chair Anthony Solana, Jr. (President and Chairperson, For People of Color, Inc.)
• John Bonifaz (Founder, National Voting Rights Institute)
• James J. Brosnahan (Senior Partner, Morrison & Foerster)
• Kate Kendell (Executive Director, National Center for Lesbian Rights)
• Eva Paterson (President, Equal Justice Society)
• Tobias Wolff (Professor of Law, University of Pennsylvania Law School)
• Eric Yamamoto (Professor of Law, University of Hawai`i School of Law)

EJS is thrilled to have many of the country’s top progressive leaders and advocates serve on our board, devoting significant time and expertise to help guide our initiatives and programs. Our impact is more meaningful because of the involvement of our board members and we thank each one of them for investing their time and resources into our organization.

Barbara A. Caulfield is the Managing Partner of the Silicon Valley office of Dewey & LeBoeuf LLP and Co-Chair of the firm’s Intellectual Property Litigation Group. She has experience in complex intellectual property litigation for pharmaceutical and biotechnology companies.

Prior to joining Dewey & LeBoeuf, Ms. Caulfield was the Executive Vice President and General Counsel for Affymetrix, Inc., a biotechnology company in the Silicon Valley. Before working at Affymetrix, Inc., she was a partner at a major international law firm, where she served as the San Francisco Litigation Partner-In-Charge from 1997-2001.

Previously, Ms. Caulfield served as a United States District Judge in the Northern District of California from 1991-1994. In addition, she has taught various courses at Northwestern Law School, University of California, Hasting College of Law and University of Oregon Law School.

She has also given lectures and instructed on trial advocacy programs around the country, including Harvard University Law School and the San Francisco Bar Association Advocacy Training Program.

Dorothy M. Ehrlich is Deputy Executive Director of the national American Civil Liberties Union, the nation’s premier defender of liberty and individual freedom.

Previously, Ehrlich served as Executive Director of the ACLU of Northern California, the largest ACLU affiliate in the nation, for 28 years.

Ehrlich has led civil liberties campaigns around reproductive rights, opposition to the death penalty, censorship, and civil rights, launched projects focused on youth, racial justice and reproductive rights. She was the driving force behind the affiliate’s vigorous response to the federal erosion of civil liberties since September 11, 2001.

An accomplished spokesperson and writer, Ehrlich has been a frequent contributor to KQED Radio’s Perspectives Series, the Daily Journal’s “Taking Liberties” column, the San Francisco Chronicle’s “Open Forum,” and other publications. Ehrlich has received civil rights leadership awards from the Asian Law Caucus and Equal Rights Advocates and was also honored with the Mario Cuomo Acts of Courage Award from Death Penalty Focus. She was awarded a Gerbode Fellowship in 1992.

Mona Tawatao has been a regional counsel with Legal Services of Northern California (LSNC) since October 1999. In this capacity, she directs LSNC’s major land use and housing advocacy in its 23 county service area. She is also a co-coordinator of LSNC’s Race Equity Project.

Ms. Tawatao has led numerous land use, housing and civil rights litigation and policy advocacy projects on the state and federal level in her current position and also previously, as a directing attorney with Neighborhood Legal Services in Los Angeles.

Ms. Tawatao is a visiting professor at UC Davis School of Law and serves on the boards of the Public Interest Law Project and the Advisory Editorial Board of the Clearinghouse Review. Ms. Tawatao received her J.D. from UCLA School of Law in 1986.

EJS Internet Access Restored

UPDATED JULY 9, 2:45 P.M. PT: Our office can now access the Internet after having been offline since Monday evening.

Emails to our staff sent after Monday evening were queued up and are now being delivered to our inboxes. It may take a few hours for all of the queued email to reach us.

Our access to the Internet and to external emails was abruptly cut off Monday evening when our service provider decided to make changes to our configuration without notifying us. We ended up spending the entire week trying to restore our service.

Thank you for your patience as we worked through this technical issue. We apologize for any inconvenience caused by our inability to respond to emails in a timely manner.

—
Due to an error by our DSL provider, our Internet access in our EJS offices has been down the entire day.

Based on the information provided to us, we expect to be down throughout Wednesday, July 7, and possibly into Thursday.

During this time, our email is down and we are unable to access the Internet. If you emailed any of our staff after 11 p.m. PT on Monday, July 5, we did not yet receive that email, but it is likely queued up and will reach us when our internet access is restored.

Until we have our service restored, if you have an urgent matter, please call the appropriate staff member directly, or call our main line at 415-288-8700.

Thank you for your patience while we work through these connectivity issues.