Rarely can a 17th century fable instruct employers on best workplace practices. Staub v. Proctor Hospital, a recent United States Supreme Court decision, however, is neatly illustrated by looking to Aesop’s fable of the “Cat’s Paw.” In this particular fable, a monkey desires chestnuts roasting in the center of a fire. The monkey convinces a cat to brave the flames and grab the chestnuts, at which point the monkey steals the chestnuts leaving the cat with a burned paw. When employers make employment decisions, they should recall Aesop’s fable and the risks it represents.
Staub is referred to as embracing the “Cat’s Paw” theory of liability. In Staub, a supervisor with an antimilitary bias targeted a part-time reservist employee by imposing certain corrective action requirements on the employee. When the employee failed to comply with the requirements, the supervisor reported the employee’s conduct to human resources. As a result, human resources terminated the employee for what was, to human resources, a non-discriminatory reason.
The issue the Court addresses in Staub is whether an employer is liable for unlawful discrimination when the decision-maker is not aware of a discriminatory animus, but rather relies on information that arises from such an animus. The Court held that “[i]f a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is the proximate cause of the ultimate employment action, then the employer” has unlawfully discriminated against the employee.
Although Staub involved a supervisor discriminating on the basis of an individual’s military affiliation, thereby implicating the Uniformed Services Employment and Reemployment Act of 1994 (“USERRA”), the Court acknowledges that USERRA is “very similar to Title VII.” Title VII prohibits discrimination on the basis of protected characteristics such as race, color, religion, sex, or national origin. Accordingly, Staub provides guidance for employers with respect to most forms of discrimination.
In short, Staub instructs that employers must not only ensure that the decision-maker is free from a discriminatory bias but also that a discriminatory motive did not infect the decision-making process. The following is a list of tips that can help human resource professionals in connection with employment decisions:
- Before making an employment decision, scrutinize both the decision and the individual recommending the decision;
- Complete a thorough investigation by following through on all accusations by the parties involved, particularly the employee who will be impacted by the employment decision;
- Document the employment decision by noting the legitimate non-discriminatory reasons that support the decision;
- Ensure that support for the decision is confirmed by multiple sources;
- When making an employment decision, if there is a possibility that the information obtained through an investigation is compromised by a discriminatory animus, then exclude such information from the decision-making process.