Supreme Court Holds That Company May Be Liable For The Discriminatory Motives Of Non-Decision Makers

On March 1, 2011, the U.S. Supreme Court held that an employer may be liable for the discriminatory motives of a supervisor who influences but does not make the ultimate employment decision. The Court’s ruling will impact employment discrimination claims where multiple individuals are claimed to have made, caused, or influenced the ultimate employment decision.

The Cat’s Paw Theory Of Liability

In employment discrimination claims, plaintiffs must establish that the employer took an adverse employment action based, in whole or in part, on their protected status, such as age, sex or religion among many others. Employees typically prove their claims by demonstrating that the ultimate decision maker had a discriminatory motive for the employment action. But where the ultimate decision maker is admittedly unbiased, several courts have allowed employees to use a subordinate bias or “cat’s paw” theory of liability to prove their claims.

The term “cat’s paw” derives from the 17th century fable of “The Monkey and the Cat” where a clever monkey persuades a cat to pull chestnuts from the fire by flattering the cat and promising to share the chestnuts. The unwitting cat burns its paws removing the chestnuts from the fire while the monkey sits back and eats all of the chestnuts. As in the fable, a biased supervisor can dupe an unbiased decision maker into taking an adverse employment action based on inaccurate, incomplete, or misleading information.

The case involved Vincent Staub, an angiography technologist at a hospital, who was also a member of the United States Army Reserves. As a reservist, Staub was obligated to attend training sessions one weekend a month and two full weeks during the year.

Staub’s supervisor began scheduling Staub to work weekends, which created conflicts with Staub’s military obligations. When Staub raised the issue, the supervisor threw him out of her office and said she did not want to deal with it. Occasionally, the supervisor made Staub use his vacation when he had to attend military training and scheduled him for additional work shifts without notice. The supervisor called Staub’s military duties “bull****” and said the extra shifts were his “way of paying back the department for everyone else having to bend over backward to cover [his] schedule for the Reserves.”

A different supervisor was also not sympathetic to Staub’s plight. He also characterized Staub’s weekend military obligations as “Army Reserve bull****” and “a bunch of smoking and joking and a waste of taxpayers’ money.” The second supervisor also told one of Staub’s coworkers that the first supervisor was “out to get” Staub.

Shortly after Staub received an order to report for “solider readiness processing,” a precursor to active deployment, the supervisor gave Staub a written warning for disregarding his job duties. Staub disputed the basis for the warning and refused to sign it. The supervisor then called Staub’s Reserve Unit Administrator and asked if Staub could be excused from some of his military duties because he was needed to work. The supervisor was told that the training was mandatory and that Staub could not be excused. The supervisor called the administrator an “a**hole” and hung up.

Eventually, human resources manager for the Hospital fired Staub for failing to comply with the written warning instructing him to report to a supervisor whenever he had completed his angiographic procedures and did not have any patients. Staub’s involvement with the military played no role in the manager’s decision to terminate Staub.

Staub sued the Proctor Hospital under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) alleging that he was terminated based on his military involvement. An appeals court reversed a jury’s verdict in Staub’s favor, finding that there was insufficient evidence for a jury to conclude that Staub was fired because he was a member of the military. Specifically, the Court concluded that Proctor Hospital could not be liable to Staub under a subordinate-bias or cat’s paw theory of liability because a reasonable jury could not find that either of Staub’s direct supervisors had “singular influence” over the HR manager, who was admittedly unbiased.

In a decision delivered by Justice Scalia, the Supreme Court 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 Court further declined to adopt a blanket rule immunizing an employer who performs an independent investigation of the conduct that led to the adverse employment action. Instead, the Court provided a very limited exception to liability where subordinate bias is at issue.

Thus, if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action (by the terms of USERRA it is the employer’s burden to establish that), then the employer will not be liable. But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.

The Court’s decision adds another layer of potential liability for employers in USERRA claims and other types of discrimination claims where an individual’s protected status is a “motivating factor” in the adverse employment action. Indeed, the decision makes it clear that if the biased motives of a subordinate supervisor influenced the chain of events that led to the adverse employment action, the employer may be liable for discrimination, even if the ultimate decision maker had no discriminatory intent.

Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011).

Reprinted with permission from Fisher & Phillips, a national law firm representing management in labor and employment law matters.