Last month, the Supreme Court ruled in Staub v. Proctor Hospital(pdf) that an employer in an employment discrimination case can be liable for the discriminatory animus of an employee who influences, but does not make, the ultimate employment decision at issue. Known as the “cat’s paw” theory, it already is having an impact on claims brought under the Family and Medical Leave Act.

As the folks at the Ohio Employer's Law Blog point out, just days after the Staub decision, the reach of the Supreme Court's ruling already has impacted an FMLA case. In Blount v. Ohio Bell Telephone Co., the employer maintained a "performance management system" that disciplined employees for failing to meet certain goals. Managers were given wide discretion to decide whether to issue discipline when an employee did not meet set goals. In Blount, two employees who had recently taken FMLA leave sued after they were terminated for failing to meet certain goals under the performance management system. In short, the employees claimed they had been treated differently than other employees who failed to meet the same goals but were not terminated.

In defending the claim, the telephone company claimed that the decision to terminate the employees came from top-level management, not the employee's direct supervisors. Thus, the employer claimed that any alleged biased from the lower-level managers had no bearing on the ultimate termination decision. The Court disagreed:

“Even if the decision to punish and terminate resided higher in the supervisory chain, . . . the animus of the Center Sales Managers can be inferred upwards where it had the effect of coloring the various adverse employment actions in this suit. See Staub (discriminatory animus can be inferred upwards where the employee who makes the ultimate decision to punish does so in reliance upon assessments or reports prepared by supervisors who possess such animus).

As a result, the Court allowed the employees' FMLA retaliation claims to be considered by a jury.

Insights for Employers

The Blount decision serves as a reminder to employers that employee allegations of illegal bias by managers should be independently investigated, regardless of when and at what point in the discipline process the allegations are raised. Clearly, a senior-level officer generally can and should rely on the recommendations of lower-level managers when deciding whether to issue discipline or terminate an employee.

However, an employer must tread carefully where there are claims of bias against a manager recommending discipline. Might the result have been different had the telephone company investigated the claims of bias before terminating the employees? In doing so, the telephone company could have tested the accuracy of the claims and determined whether the employees' terminations were independently justified and not tainted by any bias. Such an investigation also would have made for a better record for the company to defend in litigation.

The decision also is a gentle reminder that training of managers and supervisors is vitally important to combat litigation. A dollar spent now on training will save a whole lot more later. Be sure to include some space in your 2011 budget for training.