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The Monkey, the Cat, and the Army Reservist

Yesterday the U.S. Supreme Court ruled that an employer can be liable for employment discrimination based on evidence that a biased supervisor influenced, but did not actually make, an employment decision. The Court, pulling words and phrases from a legalese lexicon that only a lawyer could love, said, “if 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 a proximate cause of the ultimate employment action, then the employer is liable ....” Leaving the legal jargon aside, this is sometimes called the “cat’s paw” theory of liability.

The term "cat's paw" theory derives from Aesop's fable about a clever monkey who persuades a gullible cat to retrieve roasting chestnuts from a fire. The monkey gets the chestnuts, and the cat gets nothing but burned paws. The analogy to employment discrimination is when a biased supervisor dupes an unbiased decisionmaker into taking an adverse job action against an employee based on inaccurate, incomplete, or misleading information.     

In this case, Vincent Staub alleged he was fired because of his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Staub presented evidence that his two immediate supervisors had an anti-military bias, and that they in turn had convinced the human resources manager to fire him. Staub argued that even though the HR manager, who actually made the decision, was not herself biased, the company could still be held liable for discrimination because she fired Staub based on information the supervisors reported to HR and put in Staub’s personnel file.  

The employer argued that only the decisionmaker’s intent should be considered. The Court rejected that position. It would be contrary to USERRA, the Court reasoned, if employers could effectively shield themselves from discriminatory acts by isolating a personnel official from employees’ supervisors, and then give that official the authority to make employment decisions based on the recommendations of biased supervisors. The Court further ruled that even if the unbiased decsionmaker conducts an independent investigation, the employer still is not immunized from liability when a biased supervisor or other agent takes an action intended to cause, and that does in fact cause, an adverse employment decision. Staub v. Proctor Hospital, Case No. 09-400 (Mar. 1, 2011).

The Court’s ruling is on its face limited to USERRA. It remains to be seen whether courts will expand the Court’s underlying reasoning to claims under Title VII and other employment discrimination laws. Some lower courts have previously applied the “cat’s paw” theory of liability in Title VII cases. 
Given the Court’s ruling in Staub, it is more important now than ever to have an HR manager, upper-level manager, and/or employment lawyer thoroughly investigate proposed firings. If something doesn't seem quite right, dig deeper. While such a review is not itself a liability shield, the review process may turn up information that lets you put the brakes on a potentially unlawful discharge before it happens. Supervisors may also be less likely to act on a hidden bias if they know their recommendations will be closely scrutinized. This case also underscores the need to provide basic HR and employment law training to supervisors, and to take appropriate disciplinary action against supervisors who say or do things that betray a bias against a protected classification of persons.  HR supervisors and senior managers who fail to take such precautions may, like the cat in the fable, end up with their paws burned. 

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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