MEOW! “Cat’s Paw” Theory Upheld
/ 02.Mar, 2011
The Supreme Court’s holding in Staub v. Proctor
, decided on March 1, 2011, took a swipe at employers by upholding the “cat’s paw” theory of liability in discrimination claims, resulting in another win for employees. Notably, the court held that if a supervisor performs an act motivated by anti-military animus that is intended
by the supervisor to cause an adverse action, and the act is the proximate cause of the ultimate employment action, then the employer is liable under USERRA (Uniformed Services Employment and Reemployment Rights Act of 1994) – even if the ultimate decision maker harbored no animosity.
The cat’s paw theory arises from an old fable, where a monkey persuades a cat to pull chestnuts out of a fire, and in so doing, the cat gets burned, while the monkey steals the chestnuts (I could devote an entire blog to the oddity of fables, but I digress). Under this theory, an employer (the cat) can get “burned” (or held liable) for the discriminatory acts of the monkey (lower level supervisor). Previously, courts have been split as to the level of knowledge and reliance the ultimate decision maker must have on the lower level supervisor who harbors the discriminatory animus. Now, the Supreme Court has held that an employer will be held liable for the supervisor’s discriminatory animus where that animus results in an act which is the proximate cause of the ultimate adverse employment act. Thus, if the monkey sets the chain of events into motion, and does so with intent, the cat does – in fact – get burned.
In this case, while employed with Proctor, Staub was also a member of the U.S. Army Reserve, which required him to attend drill one weekend per month and to train full-time for two to three weeks annually. Staub’s immediate supervisor and second-level manager were hostile to his military obligations. His immediate supervisor made several damning remarks to Staub’s co-workers about her hostility towards his military service. Immediately leading up to his termination, Staub’s supervisor issued a disciplinary warning and corrective action plan for purportedly violating a company rule, which Staub contended did not actually exist.
Shortly thereafter, the Vice President of Human Resources terminated Staub for violating the corrective action warning. Staub then sued under USERRA, claiming that his discharge was motivated by hostility towards his military service. USERRA forbids discrimination against military personnel if the motivating factor in the adverse employment action was the animus against the military service. In Staub’s case, although the ultimate decision maker did not possess any hostility, Staub contended that the two lower level managers’ animosity influenced the decision maker. The jury agreed and awarded $57,640 in damages. On appeal, the Seventh Circuit reversed the lower court’s holding, and entered judgment in favor of the employer.
On appeal, the Supreme Court found in favor of the employee. The central issue was whether the alleged animus was “the motivating factor in the employer’s action” because the decision maker did not possess any hostility towards Staub’s military service, but the decision maker was relying on information provided by lower level managers who were hostile – the classic “cat’s paw” conundrum.
The Supreme Court relied on traditional tort theories of principal-agency liability in determining that an employer may be liable for a supervisor’s act which demonstrates anti-military animus which proximately causes the ultimate employment action. The Supreme Court held that even where
the decision maker conducts an independent investigation, if the ultimate decision is based on the biased supervisor’s acts, the employer will be held liable. Thus, in order to establish liability, an employee must show that a supervisor takes some biased action (writing a negative performance review; a corrective action, etc.) with the intent to get the employee fired, demoted or otherwise penalized, and the supervisor’s action must be the proximate cause of the ultimate decision.
In Staub’s case, he was fired because he allegedly violated his corrective action warning, which was issued by a biased supervisor. Hence, although the ultimate decision maker possessed no animus, the supervisor’s biased act set the chain in motion, resulting in liability under USERRA for the employer. In so doing, the Supreme Court rejected the employer’s argument that the ultimate decision maker had conducted his own investigation, thereby negating any bias on the part of the lower level supervisors.
The Supreme Court did note that a finding of liability under USERRA must be based on a determination that the anti-military animus was “the” motivating factor – not “a” factor and remanded the matter back to the Seventh Circuit to determine whether the jury instructions were appropriate or harmless error.
While the Supreme Court’s ruling was based on a claim under USERRA, the Court noted the similarity in elements of proof between a Title VII of the Civil Rights Act claim for discrimination and a claim under USERRA; thus, this “cat’s paw” theory will likely be applied in all discrimination actions. Lower level supervisors must be trained and monitored to ensure compliance with anti-discriminatory laws to avoid any burns to the employer’s paws and the loss of the employer’s chestnuts.
For more information or assistance, please contact Bill Salzer at firstname.lastname@example.org
or Kori Connelly at email@example.com