You can’t hide behind a cat’s paw.
Staub v. Proctor Hospital, 559 U.S. ___ (2011). At issue in this U.S. Supreme Court case was the extent to which an employer may be held liable for employment discrimination when the discriminating employee influences, but does not make, the ultimate adverse employment decision.
Vincent Staub worked at Proctor Hospital as an angiography technician. Staub was also a member of the United States Army Reserve, a position that required him to train part-time one weekend per month, as well as full-time two to three weeks per year. Both Staub’s immediate supervisor and her immediate supervisor were hostile to his obligations to the Army Reserve and, he believed, sought to terminate him on that basis.
In January of 2004, Staub received a “Corrective Action” warning. This warning was given to him on the basis that he had violated a rule that he claimed did not exist, or, if it did exist, that he did not violate. As a result of this Corrective Action, Staub was required to stay at his station at all times he was not interacting with patients. In April of 2004, Staub’s supervisor complained to the Vice President of Human Resources that Staub had left his desk without informing a supervisor, in violation of the Corrective Action. Staub denied this, stating that he had left a voicemail for his supervisor telling her that he would be away from his work area. The Vice President of Human Resources for Proctor relied on the supervisor’s accusation in making the decision to terminate him.
Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act (USERRA), claiming that his termination was motivated by the supervisors’ hostility to his obligations to the U.S. Army Reserve. Notably, he argued that the person who terminated him, the Vice President of Human Resources, but that the supervisors had, and that their hostility—exhibited through a meritless Corrective Action plan—influenced the Vice President of Human Resources’ decision to terminate him.
At trial, the jury agreed with Staub’s theory of the case, but, on appeal, the 7th Circuit Court of Appeals disagreed. The 7th Circuit identified this case as resting on a “cat’s paw” theory. (The “cat’s paw” reference goes to the fable in which a monkey tricks a cat by flattery into removing hot roasted chestnuts from a fire. The monkey eats the nuts and the cat, whose paw is singed by the flame, gets none. Justice Scalia observed that the fable is relevant only marginally to employment laws, but there you have it.)
As used in this context, “cat’s paw” means that a person is used unwittingly to achieve the goals of another: here, Staub’s superiors were alleged to have used the Vice President of Human Resources to accomplish their own goal of having Staub terminated, without notifying the Vice President of their unlawful purpose. The basis for the 7th Circuit’s reversal was that his case could not succeed unless the non-decisionmaker (here, the supervisors) exercised such “singular influence” over the decisionmaker that the decision to terminate was the product of “blind reliance.” The 7th Circuit rule would seem to require that the decisionmaker only “rubber stamp” the previously made decision of another, rather than conducting an investigation, as the decisionmaker in Staub’s case had done.
The Supreme Court reversed the 7th Circuit’s decision.
The Supreme Court first noted that the anti-discrimination language of USERRA is much like that of Title VII of the Civil Rights Act of 1964 (prohibiting discrimination in employment on the basis of race, gender, national origin, etc.) in that both statutes require that the person’s membership in a protected group is a “motivating factor” in the employer’s action.
The central issue was this: can membership in the Army Reserves (or a person’s race or gender) be a “motivating factor” in an adverse employment action, if the decision maker herself does not have any unlawful discriminatory intent, but is influenced by some previous company action—here, the Corrective Action—taken by someone who does possess that bad intent?
The court decided that it could be, if the action was based on a discriminatory motive was intended to cause, and in fact did cause, an adverse employment decision. This is the case even if the ultimate decision maker conducts an independent investigation outside of the biased supervisor’s analysis, if the investigation relies on facts provided by the biased supervisor.
Justice Alito’s concurring opinion, in which Justice Thomas joined, expresses the concern that this holding will impose liability unfairly on employers who attempt to comply with the law. Whether that will be the case remains to be seen, but this decision does impose on employers a greater duty to ensure that their termination decisions are not motivated—even at a secondary level—by illegal discrimination.