Daniel Bloom CEO of Daniel Bloom and Associates, Inc. is not a licensed Attorney or a member of the Bar and our views do not constitute legal advice. If concerned with any of the issues i this post you should obtain legal advice from your corporate legal cousel.
On March 1 the US Supreme Court released two different decisions that could have a direct impact on HR decisions:
The first one was involving an employee who was disciplined by his supervisors because they did not like his serving in the US Military reserves:
Since a supervisor is an agent of the employer, when he causes an adverse em-ployment action the employer causes it; and when dis-crimination is a motivating factor in his doing so, it is a“motivating factor in the employer’s action,” precisely as the text requires. JUSTICE ALITO suggests that the em-ployer should be held liable only when it “should be re-garded as having delegated part of the decisionmaking power” to the biased supervisor. Ibid. But if the inde-pendent investigation relies on facts provided by the bi-ased supervisor—as is necessary in any case of cat’s-paw liability—then the employer (either directly or through the ultimate decisionmaker) will have effectively delegated the factfinding portion of the investigation to the biasedsupervisor. Contrary to JUSTICE ALITO’s suggestion, thebiased supervisor is not analogous to a witness at a benchtrial. The mere witness is not an actor in the events that are the subject of the trial. The biased supervisor and theultimate decisionmaker, however, acted as agents of the entity that the plaintiff seeks to hold liable; each of them possessed supervisory authority delegated by their em-ployer and exercised it in the interest of their employer. In sum, we do not see how “fidelity to the statutory text,” ibid., requires the adoption of an independent-investigation defense that appears nowhere in the text.And we find both speculative and implausible JUSTICE ALITO’s prediction that our Nation’s employers will sys-tematically disfavor members of the armed services intheir hiring decisions to avoid the possibility of cat’s-pawliability, a policy that would violate USERRA in any event. We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action,3 and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA. 4UnderBoth Mulally and Korenchuk were acting within the scopeof their employment when they took the actions that allegedly caused Buck to fire Staub. A “reprimand . . . for workplace failings” constitutes conduct within the scope of an agent’s employment. Faragher v. Boca Raton, 524U. S. 775, 798–799 (1998). As the Seventh Circuit recog-nized, there was evidence that Mulally’s and Korenchuk’s actions were motivated by hostility toward Staub’s mili-tary obligations. There was also evidence that Mulally’sand Korenchuk’s actions were causal factors underlying Buck’s decision to fire Staub. Buck’s termination notice expressly stated that Staub was terminated because hehad “ignored” the directive in the Corrective Action. Fi-nally, there was evidence that both Mulally and Koren-chuk had the specific intent to cause Staub to be termi-nated. Mulally stated she was trying to “‘get rid of’” Staub, and Korenchuk was aware that Mulally was “‘outto get’” Staub. Moreover, Korenchuk informed Buck, Proctor’s personnel officer responsible for terminatingemployees, of Staub’s alleged noncompliance with Mu-lally’s Corrective Action, and Buck fired Staub immedi-ately thereafter; a reasonable jury could infer that Koren-chuk intended that Staub be fired. The Seventh Circuit therefore erred in holding that Proctor was entitled to judgment as a matter of law. It is less clear whether the jury’s verdict should be reinstated or whether Proctor is entitled to a new trial. —————— view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision. We also observe that Staub took advan-tage of Proctor’s grievance process, and we express no view as towhether Proctor would have an affirmative defense if he did not. Cf. Pennsylvania State Police v. Suders, 542 U. S.
The secod one involved the question of whether certain corporate documets could be shielded from disclosure under the Freedom of Information Act
Corporations do not have “personal privacy” for the purposes ofExemption 7(C). Pp. 3–12.
(a) AT&T argues that the word “personal” in Exemption 7(C) incor-porates the statutory definition of “person,” which includes corpora-tions, §551(2). But adjectives do not always reflect the meaning ofcorresponding nouns. “Person” is a defined term in the statute; “per-sonal” is not. When a statute does not define a term, the Court typi-cally “give[s] the phrase its ordinary meaning.” Johnson v. United States, 559 U. S. ___, ___. “Personal” ordinarily refers to individuals.People do not generally use terms such as personal characteristics or personal correspondence to describe the characteristics or correspon-dence of corporations. In fact, “personal” is often used to mean pre-cisely the opposite of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company’s view. Dictionary definitions also suggest that “per-sonal” does not ordinarily relate to artificial “persons” like corpora-tions.
AT&T contends that its reading of “personal” is supported by the common legal usage of the word “person.” Yet while “person,” in a le-gal setting, often refers to artificial entities, AT&T’s effort to ascribe a corresponding legal meaning to “personal” again elides the differ-ence between “person” and “personal.” AT&T provides scant support for the proposition that “personal” denotes corporations, even in a le-gal context.
Regardless of whether “personal” can carry a legal meaning apart from its ordinary one, statutory language should be construed “inlight of the terms surrounding it.” Leocal v. Ashcroft, 543 U. S. 1, 9. Exemption 7(C) refers not just to the word “personal,” but to the term“personal privacy.” “Personal” in that phrase conveys more than just“of a person”; it suggests a type of privacy evocative of human con-cerns—not the sort usually associated with an entity like AT&T.AT&T does not cite any other instance in which a court has expresslyreferred to a corporation’s “personal privacy.” Nor does it identify any other statute that does so. While AT&T argues that this Court has recognized “privacy” interests of corporations in the FourthAmendment and double jeopardy contexts, this case does not call forthe Court to pass on the scope of a corporation’s “privacy” interests asa matter of constitutional or common law. AT&T contends that the FCC has not demonstrated that the phrase “personal privacy” neces-sarily excludes corporations’ privacy. But construing statutory lan-guage is not merely an exercise in ascertaining “the outer limits of [aword’s] definitional possibilities,” Dolan v. Postal Service, 546 U. S. 481, 486, and AT&T has provided no sound reason in the statutorytext or context to disregard the ordinary meaning of the phrase.Pp. 3–9.
(b) The meaning of “personal privacy” in Exemption 7(C) is further clarified by two pre-existing FOIA exemptions. Exemption 6, whichCongress enacted eight years before Exemption 7(C), covers “person-nel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” §552(b)(6). This Court has regularly referred to Exemption 6 as in-volving an “individual’s right of privacy,” Department of State v. Ray, 502 U. S. 164, 175, and Congress used in Exemption 7(C) the samephrase—“personal privacy”—used in Exemption 6. In contrast, FOIA Exemption 4, which protects “trade secrets and commercial or finan-cial information obtained from a person and privileged or confiden-tial,” §552(b)(4), clearly applies to corporations. Congress did not useany language similar to that in Exemption 4 in Exemption 7(C).Pp. 9–11.
Our primary concern is with the first case (Staub vs. Porctor Hospital), We fully understand that you cannot control the minds of your human capital assets. The problem comes when you allow those views to guide your human resource policies and actions. As HR Managers we have an obligation to our organizations to insure that any discipliary actions taken in the case of a employee are based on authentic problem areas, not one that is clouded by personal views. It is inherent on HR professionals include this distinction in ongoing management training.
Posted via email from hrstrategist@Net-Speed
Over the upcoming weeks, when Carl the Custodian is missing from your workplace, you may want to give your local 
