What happens when an unbiased decision maker relies on the reports of a biased supervisor to make an employment decision? According to the U.S. Supreme Court in Staub v. Proctor Hospital Inc., the employer can be held liable under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), which forbids discrimination based on a person’s military service.
Vincent E. Staub was an employee of Proctor Hospital in Illinois and a member of the U.S. Army Reserves. When he was called to duty, his two immediate supervisors were critical of his absences for military obligations. One of the supervisors issued Staub a disciplinary warning for leaving his work responsibilities, asking him to obtain permission before leaving in the future. On a separate occasion, the other supervisor informed the hospital’s vice president of human resources that Staub had left work without permission. Staub claimed both accusations were false. The vice president, relying on the second accusation and her review of Staub’s personnel file (which included the prior incident), decided to terminate him.
Staub sued under USERRA. At trial, the jury sided with Staub, finding that although the ultimate decision maker was unbiased, the vice president improperly relied on reports from biased supervisors. Staub’s lawyers put forth the “cat’s paw” theory, which holds that an employer can be held liable for the wrongful intentions of a supervisor who ultimately did not make the final decision to terminate.
The “cat’s paw” theory gets its name from a 17th century French fable about a monkey who persuaded a cat to pull chestnuts out of a fire, so the cat gets burned and the monkey gets the chestnuts. In the workplace context, application of this theory suggests an employer can be liable even if the actual executive or supervisor who fires or demotes a worker does not act out of a biased intent, but the bias of another executive or supervisor is deemed to have influenced the final decision.
The Seventh Circuit reversed the jury verdict, holding that discriminatory bias can be attributed to a decision maker only where the biased non-decision maker had a “singular influence” over the decision maker. The Supreme Court, in a 5-4 decision, reversed the appellate court’s ruling, holding 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 under USERRA.”
What It Means
The split decision in Staub v. Proctor Hospital applies directly to the federal law making it illegal to discriminate against a worker because that employee has had to take time off to serve in the active or reserve military.
The Supreme Court ruled that the “cat’s paw” theory of liability is applicable to an employer only if these steps play out in a sequence:
- a supervisor of the worker takes a step that is done for a biased reason,
- that supervisor intends to get the worker fired, demoted or otherwise penalized, and
- 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 employment decision is someone else, and that person was not at all biased.
What Employers Should Do
Although time will tell what the full implications of the Staub decision will be, employers should be aware that decision makers may be required to conduct a thorough and independent investigation to avoid being influenced by potentially biased supervisors.