In March 2011, the United States Supreme Court decided Staub v. Proctor Hospital, a decision that made proving the “cat’s paw” theory of liability significantly easier for employees to do. 131 S.Ct. 1186 (2011). “Cat's paw" claims exist where a plaintiff seeks to hold the employer liable for the intentional discrimination of an employee, usually a supervisor, who did not make—but influenced—the ultimate employment decision in question. Prior to Staub, many federal circuits held that a plaintiff could prove “cat’s paw” liability only where the supervisor exercised “such singular influence over the employee who made the decision to render it a mere product of ‘blind reliance.’” 560 F.3d 647, 659 (7th Cir. 2010). The Supreme Court, however, rejected that standard in Staub, holding instead that “if a supervisor performs an act motivated by an [unlawful] animus that is intended to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable." 131 S.Ct. at 1194. Accordingly, the former standard of “blind reliance” was replaced by a simple combination of intent and causation. Indeed, if the discriminating employee's influence has "some direct relation” to the ultimate action taken, liability will be established. Id. at 1192.
With the door opened wider to “cat’s paw” claims, a handful of instructive cases have since emerged. Some highlight the importance of actually reviewing – rather than rubber stamping – a termination recommendation, and others probe the question intentionally left open by the Staub decision: whether discriminatory coworkers, not just supervisors, can create liability for employers under this theory? [i] Lessons abound for employers in cases applying the “cat’s paw” theory after Staub, and courts all over the country can’t seem to agree whether the decision should be applied to supervisors and coworkers alike, or just supervisors alone. Either way, getting the lay of the land and internalizing how employers should incorporate Staub into their practices is a wise thing for any human resources professional—or attorney practicing in this area—to do.
- “Cat’s Paw” Liability in the Post-Staub World
The most instructive case I have found after Staub v. Proctor Hospital comes from our own Sixth Circuit Court of Appeals, Chattman v. Toho Tenax America, Inc, 686 F.3d 339 (6th Cir. 2012). There, a long-time African-American employee with no history of corrective action was issued a final warning for engaging in horseplay, a violation of the company’s safety policy. That final warning made him ineligible for a raise or promotion and was administered after an “independent” HR review. The review was conducted in response to a termination recommendation by the employee’s direct HR supervisor, who happened to be Caucasian. As a part of that process, the HR supervisor lied about other managers agreeing with his decision and provided selective information about the conduct in question. Indeed, the horseplay that got the employee in trouble was commonplace in their work environment and had never resulted in discipline for other employees before (including those of different races than the plaintiff). Accordingly, even though the termination recommendation was reduced to a final warning, the Court could “not say that the investigation conducted … was ‘unrelated’ to [the HR supervisor’s] actions.” Id. at 353. Because a “reasonable fact-finder could find [the HR supervisor’s] actions were a proximate cause of the adverse decision,” summary judgment for the employer was reversed and the case remanded for trial. Id.
Two lessons jump off the page in reading this decision. The first is simple: if a recommendation is made and the employee who makes it provides a list of others who agree, check with them before acting on it. That alone will help the employer verify an independent basis for its decision “unrelated to” the recommendation itself. If not, it will at least put the employer on notice of a supervisor who cannot be trusted. Either way, that is a good outcome.
The second lesson is related. Each employer should reconstruct the facts reported to it … on its own. The report provides a story to verify, so verify it through independent channels. Obviously, employers do not have time to redo the work of their lower-level supervisors. However, a few simple steps – such as verifying the report or recommendation with another employee, and reviewing related documentation – can enhance the report’s credibility and increase the employer’s good faith, honest belief in the reason for its decision. Failing to do these things sincerely can remove the same independence from an employer’s review that is necessary to absolve it from liability. Furthermore, it could also keep a good or unjustly accused employee from being fired. The takeaway from Chattman is clear: vet the sources on which you rely.
- Supervisor vs. Coworkers
In Staub, the Supreme Court “expressed no view” on whether discriminatory acts by mere coworkers, rather than supervisors, can result in “cat’s paw” liability. See 131 S.Ct. at 1194, fn. 4. As a result, courts throughout the country have been forced to take up the issue and resolve it for themselves. The conclusions they’ve reached are, of course, anything but consistent.
Two courts have firmly ruled that “cat’s paw” liability applies only to the conduct of supervisors: the Eastern District of New York and the Western District of Tennessee. In Abdelhadi v. New York, the Court dismissed the notion that the theory should be extended to coworkers, saying:
[O]ne reason not to extend cat’s paw liability to the acts of coworkers is that [their comments about the plaintiff] may often be gratuitous. Supervisors, in contrast, are … expected to give feedback to decision-makers about their subordinates as a part of their regular duties.
2011 WL 3422832, *5 (E.D.N.Y. Aug. 4, 2011). For that reason, the Court declined to hold the defendant employer liable for “unsolicited comments” from plaintiff’s coworkers about his fitness for duty. Id. Doing so, the Court explained, would “contemplate a scope of liability the Staub court did not confront.” Id. “The biased individual must be a supervisor of the plaintiff.” Id.
Likewise, the Western District of Tennessee recently found “it inappropriate to step beyond the bounds of delineated authority” on this question, pointing out that “neither the Sixth Circuit nor any of the district courts [therein] have extended [Staub’s] holding beyond non-decision-making supervisors.” Reynolds v. Fed. Ex. Corp., 2012 WL 1107834 (W.D. Tenn. Mar. 31, 2012).[ii] As a result, the Court held the comments of an allegedly discriminatory coworker to be “insufficient to trigger a theory of cat’s paw liability.” 2012 WL 1107834 at *19.
Other cases attempt to ride the fence—by declining to formally extend “cat’s paw” liability to coworkers but nevertheless applying it to show the shoe wouldn’t fit anyhow. See e.g., Grant v. Walgreens Co., 2011 WL 2079923, *9-10 (E.D. Mich. May 25, 2011)(“Plaintiff has not shown the connection between [her coworker’s] alleged age discrimination and [her] reporting Plaintiff to loss prevention.”). [iii] These cases highlight the discomfort courts have how open-ended this issue currently is.
The Northern District of Illinois, however, has no such discomfort. In a recent decision, Johnson v. Kappers, Inc., the Court held that “cat’s paw” liability does in fact apply to the discriminatory acts of coworkers. 2012 WL 1906448, *6-7 (N.D. Ill. May 25, 2012). After quoting a Seventh Circuit decision from Judge Posner, the Court explains that the distinction is not, and should never be, a significant one:
[I]f the biased employee’s motive is imputed to the supervisor, then it would not matter whether the biased employee is another supervisor or, as here, a coworker. In either scenario, a supervisor who is an agent of the employer has caused an adverse employment action that is motivated, in part, by discriminatory animus.
Id. In that scenario, the Court concludes, no employee should be precluded from asserting a claim of discrimination or retaliation “simply because [the biased employee] was a coworker and not a supervisor.” Id. at *7.
Other courts, I imagine, will soon join the Northern District of Illinois’ position, creating a fairly widespread conflict of law on this issue. That conflict will not be resolved until the Supreme Court takes up the very question it purposefully punted in the Staub decision. Knowing where you are, therefore, and what rule of law applies, is accordingly essential for employers and practitioners alike.
Regardless of how the coworker/supervisor question turns out, the lessons of the Chattman case remain true. In response to any report or recommendation about an employee—whether from a coworker or a supervisor—taking the care necessary to verify it independently is always the best course of action. The foundation for every employment decision needs to be reliable, and vetting the sources on which you rely will never come back to haunt you.