On March 1, 2011, the Supreme Court decided in Staub v. Proctor Hospital that an employer can be held liable for discrimination even if the ultimate decision maker was not motivated by improper biases, but instead was influenced by a supervisor who harbored such bias. As a result of this case, employers must be even more careful in documenting and investigating adverse employment actions.
Aesop Goes to Washington
The decision, written by Justice Scalia, recognized in a footnote that the theory of liability entitled “cat’s paw” is derived from a fable conceived by Aesop and written by La Fontaine in 1679. In the fable, “The Monkey and the Cat,” a shrewd monkey convinces a naïve cat to pull roasting chestnuts from a fire by complimenting the cat and promising to share the chestnuts. However, once the cat has done its job, having burned its paws in the process, the monkey takes all of the chestnuts for himself, leaving the cat with nothing but burned paws. The underlying theme in the fable, as demonstrated in the employment law context, is that a supervisor with improper motives may trick an ultimate decision maker into taking an adverse employment action against an employee, based on the biased supervisor’s false information.
Staub v. Proctor Hospital
The plaintiff, Vincent Staub, worked as an angiography technician at Proctor Hospital until he was fired in 2004. While employed by Proctor, Staub also served as a member of the United States Army Reserve, a duty which required him to attend drill one weekend each month and to train full-time for a few weeks each year. Staub alleged that his direct supervisor, Janice Mullaly, and her supervisor, Michael Korenchuk, harbored hostility towards Staub’s military duties. Mullaly would schedule Staub for additional shifts without notice in order to “pa[y] back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves,” and complained to a co-worker that Staub’s duties had put a strain on the department and she needed help getting rid of him. Korenchuk allegedly referred to Staub’s duty as “a b[u]nch of smoking and joking and [a] waste of taxpayers[’] money.” In January 2004, Mullaly issued Staub a disciplinary warning for violating a company rule requiring Staub to stay in his work area whenever he was not with a patient; Staub disputed that such a rule existed, and denied violating it. In April 2004, Korenchuk informed a human resources official that Staub had violated the terms of the disciplinary warning, a claim that Staub denied. After reviewing Staub’s file (which included the disciplinary warning), speaking with another human resources officer, and relying on Korenchuk’s accusation, the human resources official terminated Staub’s employment.
Staub sued Proctor Hospital pursuant to the Uniformed Services Employment and Reemployment Rights Act (USERRA), claiming that his termination was motivated by hostility towards his military obligations. He contended that while the human resources official did not have such hostility, she relied upon information provided by Mullaly and Korenchuk, who had such hostility and discriminatory animus. The jury found that Staub’s military status was a motivating factor in the decision to terminate his employment, and awarded Staub $57,640 in damages. The Seventh Circuit reversed however, noting that a “cat’s paw” case could not succeed unless the non-decision maker exercised “singular influence” over the ultimate decision maker, such that the adverse employment action was the product of “blind reliance.” The Seventh Circuit noted that because the human resources official looked beyond what Mullaly and Korenchuk alleged, Proctor could not be liable.
The Supreme Court reversed and remanded the case. It held that when the ultimate decision maker is not biased, the employer will be liable under USERRA if: 1) a supervisor performs an act motivated by antimilitary animus; 2) the act is intended by the supervisor to cause an adverse employment action; and 3) the act is a proximate cause of the ultimate employment action. Applying concepts from tort and agency law, the Court held that the ultimate decision maker’s independent review does not prevent a non-decision maker’s discriminatory animus from being the proximate cause of the adverse employment action. In doing so, the Court rejected any argument that because the ultimate decision maker conducts an independent investigation, the adverse employment action is automatically void of discriminatory intent. However, if the ultimate decision maker’s independent investigation results in an adverse employment action for a reason unrelated to the supervisor’s original biased act, then the employer will not be liable.
Additionally, the Court recognized that USERRA is analogous to Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin, and states that discrimination is established when one of those categories is “a motivating factor for any employment practice.” Thus, the concepts discussed in Staub could very well apply in other employment discrimination cases.
How Employers Can Protect Their Paws
Employers can take a number of steps to prevent issues pertaining to the cat’s paw theory of liability:
- First and foremost, ensure that the ultimate decision maker carefully investigates facts before acting. The ultimate decision maker cannot simply accept negative information in the employee’s file as being true. He or she should look for well-supported evidence and reasoning for the adverse employment action to ensure there is a legitimate, non-discriminatory reason for the action.
- Provide for an internal complaint procedure to ensure that employees can report allegations of bias amongst their supervisors. This procedure should ensure confidentiality and be taken seriously.
- Train supervisors on proper ways to preserve evidence in the employee file. This evidence must be as specific as possible to support warnings and other disciplinary action.
- Consider requiring independent investigations before instituting a serious adverse employment action, particularly if the employee has made prior claims of discrimination.
- Frequently train and update supervisors and ultimate decision makers on their obligations to maintain a workplace free of discrimination.
By following the steps outlined above, employers can help prevent getting burned when it comes to the cat’s paw theory of liability.