The Monkey and the Cat" was a fable written by 17th Century French Poet, Jean de La Fontaine. Staub v. Proctor Hospital is a March 1, 2011 decision written by Justice Scalia of the United States Supreme Court. I very much doubt Fontaine ever figured his work would give rise to a legal theory used to impose liability upon employers, but it has been invoked to increase the potential for finding employers liable for discrimination.

"In The Monkey and the Cat," the clever monkey tricks the cat into reaching into a fire to scoop out chestnuts. The cat burns his paw and the monkey enjoys the chestnuts. In employment law, the cat's paw theory of discrimination was developed to impose liability upon an employer when the individual making the ultimate employment decision has no discriminatory bias or animus, but another individual that influenced the ultimate decision did possess a discriminatory bias or animus.

Staub was employed as an angiography technician at Proctor Hospital and was also an Army Reservist. His immediate supervisor and the next level supervisor were hostile regarding Staub's military obligations. Staub was disciplined by these two supervisors. As a result of this discipline, Staub was terminated by the vice president of human resources ("HR Manager") who possessed no hostility, but who relied on information provided by the two supervisors in making the decision to terminate Staub. Staub acknowledged that the HR manager had no discriminatory bias; however, the case proceeded to the Supreme Court to determine whether Staub could recover under the Uniformed Services Employment and Reemployment Rights Act ("USERRA") based on the discriminatory bias of the supervisors.

The Supreme Court determined that traditional agency principles applied to USERRA and found that an employer is liable as long as an individual's military service is a motivating factor in the adverse employment action. The Court determined that even though a biased supervisor does not make the ultimate decision to terminate, liability may still exist if the supervisor's discriminatory intent proximately caused the adverse employment action. It is significant that the Court used the term "intent," because it determined that an employer is liable if a supervisor committed an action based on discriminatory bias that was intended to cause, and did in fact cause, an adverse employment decision. In reaching this decision, the Court noted that federal laws, such as USERRA, are founded on traditional tort theories. The practical application of this reasoning is that the Court's decision and rationale applies to other federal statutes. In fact, the Supreme Court noted the similarities between USERRA and Title VII's use of the phrase "motivating factor." Presumably, however, the Court's ruling does not apply to the Age Discrimination in Employment Act ("ADEA"), because the Supreme Court previously determined that plaintiffs must prove age was the "but-for" cause of the adverse action, and not simply a motivating factor.

The Staub v. Proctor Hospital decision is problematic, because it is potentially limitless. For example, an employee terminated for excessive tardiness in 2011 by a supervisor with no bias may have a claim for discrimination if the decision to terminate was based upon a written warning for tardiness from a biased supervisor in 2002. Proximate cause excludes "link[s] that are too remote, purely contingent, or indirect." This decreases the likelihood that discriminatory decisions or actions that occurred in the distant past can form the basis of a discrimination claim. The likelihood of this occurring, however, is not completely eliminated. At the very least though, the Supreme Court's decision makes it more difficult for employers to dispose of cases on summary judgment, especially when the alleged biased supervisor or manager may no longer be available to testify and refute allegations.