In a case decided last week, Staub v Proctor Hospital, a unanimous United States Supreme Court finally addressed the application of the “cat’s paw” theory of liability to employment discrimination claims, holding that an employer can be liable for an employment action motivated by a non-decision maker’s discriminatory animus.
Derived from the 17th Century French fable “The Monkey and the Cat” by French poet Jean de La Fontaine, in which a monkey uses an unwitting cat to pull chestnuts from a hot fire, the cat’s paw theory captures the notion of one individual using another to accomplish his ulterior motives. In employment discrimination cases, plaintiffs use the cat’s paw theory to hold employers liable by imputing to an unbiased decision maker the discriminatory acts of a supervisor without decision-making power.
Plaintiff Vincent Staub, a member of the U.S. Army Reserve, alleged that his two immediate supervisors were hostile to his military obligations. Motivated by their discriminatory animus toward Staub’s military service, the supervisors issued Staub a corrective action disciplinary warning for violating company policy and later accused Staub of violating the corrective action, both of which Staub contested. Relying on this accusation and the complaints and reports of the supervisors, the hospital’s vice president of human resources reviewed Staub’s personnel file and decided to terminate his employment for ignoring the directive issued in the corrective action. This decision maker, however, had no knowledge of the supervisors’ resentment of Staub’s military activities.
Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), claiming that his termination was motivated by hostility to his obligations as a military reservist. A jury awarded Staub damages, finding that his military status was a motivating factor in Proctor’s decision to terminate his employment. The Seventh Circuit tossed the jury verdict, holding that the hospital was entitled to judgment as a matter of law. Noting that Staub had advanced a cat’s paw liability theory, the Seventh Circuit explained that a cat’s paw case could not succeed (under Seventh Circuit precedent) unless the non-decision maker exercised such “singular influence” over the unbiased decision maker that the decision to terminate was the product of “blind reliance.” In the circuit court’s view, if the decision maker is not wholly dependent on a single source of information and conducts an independent investigation before acting, the necessary singular influence is lacking and the employer cannot be held liable for the non-decision maker’s discriminatory acts. Staub’s failure to prove that his immediate supervisors had a singular influence on the unbiased decision maker was fatal to his USERRA claim, according to the Seventh Circuit.
Disagreeing, the Supreme Court applied agency and tort law principles and 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 under USERRA. The high court observed that USERRA and Title VII are very similar because both statutes provide that discrimination is established when an employee’s protected characteristic is a “motivating factor” for an adverse employment decision. Accordingly, to prove the requisite “motivating factor” in discrimination claims premised on cat’s paw liability, a discrimination plaintiff need only prove that the non-decision maker’s discriminatory animus was a proximate cause of the ultimate employment decision.
The Court refused to adopt a bright-line rule, advocated by Justice Alito in his concurring opinion, to shield employers from cat’s paw liability when the unbiased decision maker conducts an independent investigation before making the adverse employment decision. As the Supreme Court explained, “We are aware of no principle in tort or agency law under which an employer’s mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of ‘fault.’”
Despite the Supreme Court’s rejection of the Seventh Circuit’s pro-employer “singular influence” rule (by adopting a proximate cause standard), and the high court’s refusal to adopt a bright-line “independent investigation” defense to a plaintiff’s cat’s paw discrimination claim, employers should still ensure that decision makers conduct independent investigations before making adverse employment decisions. Indeed, the Supreme Court noted that if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action, then the employer will not be liable. Nevertheless, if the independent investigation relies on facts provided by the biased supervisor, the casual connection between the supervisor’s discriminatory acts and the unbiased decision maker’s ultimate employment decision remains and, thus, proximate cause will likely exist.
Therefore, before an employer takes any adverse employment action against an employee, the employer should take well-planned steps to interview thoroughly the employee at issue to uncover any alleged supervisor discriminatory animus. If an employer reasonably concludes that a supervisor is discriminatorily motivated, the employer should ensure that the biased supervisor’s reports, statements, or communications during an investigation play no role in the adverse employment action. The Staub decision also demonstrates that employers should implement and conduct mandatory supervisory anti-discrimination and anti-harassment training to avoid the risk of employment discrimination liability under the civil rights laws.