In a unanimous ruling in Staub v Proctor Hospital,(1) the Supreme Court recently adopted an expansive interpretation of the 'cat's paw' doctrine, providing plaintiffs' attorneys with a new theory of liability under which to bring claims of employment discrimination. The cat's paw doctrine permits an employer to be held liable for discrimination based on the discriminatory animus of a supervisor who influenced, but did not make, the ultimate adverse employment decision. An employer may be held liable under such a theory even though the ultimate decision maker lacked discriminatory intent.
Although the Staub case addressed a claim brought under the Uniformed Services Employment and Reemployment Rights Act, the holding in Staub can be expected to be extended to causes of action arising under Title VII, which is very similar to the Uniformed Services Employment and Re-employment Rights Act, as explicitly noted by the court, as well as other employment discrimination and retaliation laws. Staub is thus likely to have far-reaching implications for employers.
Vincent Staub was a member of the US Army Reserve. His two supervisors made statements indicating hostility to Staub's military obligations and expressing a desire to have him terminated. One of his supervisors later issued a corrective action disciplinary warning to Staub, which Staub claimed was pretextual. Shortly thereafter, the other supervisor informed the company's vice president of human resources that Staub had violated the warning. In reliance on that supervisor's statement and a review of Staub's personnel file, which included the warning, as well as a complaint by Staub's co-worker about his performance, the vice president of human resources decided to terminate Staub's employment. The vice president of human resources was unaware of the discriminatory animus held by Staub's supervisors.
Based on the foregoing facts, the Seventh Circuit Court of Appeals ruled that a cat's paw claim could not succeed because the non-decision makers, the supervisors, failed to exercise "singular influence" over the decision maker, the vice president of human resources, who conducted her own investigation before taking the adverse employment action.
Reversing the Seventh Circuit, in an opinion by Justice Scalia, the Supreme Court held 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."
In such case the discriminatory animus is a motivating factor in the employer's ultimate action as required to establish a violation of the Uniformed Services Employment and Re-employment Rights Act. The court reached this decision despite the fact that the decision maker, the vice president of human resources, lacked any discriminatory animus toward Staub. It found that because the actions of Staub's supervisors were motivated by discriminatory intent and were causal factors underlying the decision to terminate Staub, and because the supervisors had the specific intent to cause Staub to be terminated, cat's paw liability could exist.
The court squarely rejected the employer's defence based on the purported independent investigation by the vice president of human resources because the supervisor's "biased report" remained a causal factor in the termination decision as it was relied on in the investigation. The court held that the employer was liable because "one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment action". However, the court noted that an independent investigation by a decision maker could serve as a defence where the "employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action".
The Staub case creates a much more expansive theory of cat's paw liability to be invoked by plaintiffs' attorneys for claims arising under the Uniformed Services Employment and Re-employment Rights Act, Title VII and possibly other employment discrimination and retaliation laws. Employers are likely to face further challenges in obtaining summary judgment where multiple supervisors played a role in an adverse employment decision and at least one had a discriminatory animus that arguably tainted the decision-making process. However, the requirement that the plaintiff establish that the non-decision maker with discriminatory animus actually intended to cause the adverse employment action certainly raises the bar for plaintiffs attempting to avoid summary judgment.
Moreover, although it provided limited guidance as to the availability of such a defence, the court left open the door to a defence based on a decision maker's independent investigation of the facts before the adverse employment decision. This portion of the decision underscores the importance of conducting a thorough, impartial factual review before the termination of an employee, particularly when the employee has made any claim of discrimination. The challenge for employers, however, is that it is practically impossible to review an employee's performance without seeking input from that employee's supervisor.
In addition, the court explicitly declined to address the issue of whether an employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the employment decision, leaving employers with a possible defence where a co-worker's alleged discriminatory intent is at issue.
For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100), fax (+1 212 715 8000) or email ([email protected] or [email protected]).