If I may be permitted to mix my literary references, a guaranty is a guaranty is a guaranty, except when it’s a surety. Continue reading
Sly Bertrand and Ratto in company, sat
(The one was a monkey, the other a cat)
Co-servants and lodgers;
More mischievous codgers
Never messed from a platter, since platters were flat.
Can an employer be liable for discrimination even if the person who makes the decision in question did not discriminate? The answer, now, is “maybe.” On March 1, 2011, the Supreme Court issued its decision in Staub v. Proctor Hospital, (http://www.supremecourt.gov/opinions/10pdf/09-400.pdf ) holding that an employer may be liable for discrimination where a supervisor, motivated by some unlawful animus, performs an act that is intended to cause an adverse employment action against an employee, and the supervisor’s act is a proximate cause of the ultimate adverse employment action. This legal theory, which the Supreme Court addressed at length for the first time in Staub, is known as “cat’s paw” liability.
The concept of “cat’s paw” liability is common in the law and a source of substantial litigation. The term “cat’s paw” derives from a Jean de la Fontaine poem (partially quoted above, and which poem in turn comes from anAesop fable) about a cat who is persuaded by a monkey to steal chestnuts from a fire. The cat burns his paws, while the monkey eats all of the chestnuts. The cat, in the story, is the dupe. He is induced to do the dirty work of the monkey, who receives all of the benefit, and none of the pain. Seventh Circuit Court Judge Posner injected the term “cat’s paw” into the legal sphere in a 1990 employment discrimination decision, though, as the Supreme Court noted in Staub, the term has, at most, marginal relevance to employment law.
Until Staub, no consensus existed as to the application of the “cat’s paw” theory of liability, with courts falling into one of three categories. Some courts found employers liable for discrimination only where the discriminatory actor was the actual decision-maker or the person principally responsible for the ultimate adverse employment action. Other courts asked whether the biased reports, recommendations, or other actscaused the adverse employment action. Other courts simply considered whether a biased non-decision-maker influenced a tangible employment decision. The Supreme Court did not adopt any of these three interpretations, instead fashioning its own “cat’s paw” test in Staub.
Vincent Staub worked as an angiography technician for Proctor Hospital and currently served as a member of the U.S. Army Reserve, a position that required him to attend training one weekend per month and full time for two to three weeks per year. According to Staub, two of his supervisors were openly hostile to his military obligations, as they made several comments regarding the “strain” that Staub’s military obligations put on the department, and voiced the opinion that reservist training was a waste of taxpayers’ money.
Staub’s supervisors issued him a disciplinary warning for violating a company rule and, through a “Corrective Action,” directed Staub to report to them when he had no patients. A few months later, one of his supervisors informed the Vice President of Human Resources, Linda Buck, that Staub had violated the Corrective Action. Staub contended that the factual bases for both the Corrective Action itself and the alleged violation of the Corrective Action were false. After reviewing Staub’s personnel file, Ms. Buck decided to rely on the supervisors’ allegations and terminated Staub.
Staub sued Proctor Hospital under the Uniform Services Employment and Reemployment Rights Act (“USERRA”), which prohibits employers from discriminating against members of the uniformed services. Finding that the supervisors’ hostility to his military obligations did indeed motivate Staub’s discharge, the jury awarded Staub $57,640 in damages. The Seventh Circuit reversed, holding that, under that Circuit’s precedent, a “cat’s paw” case could not succeed unless the hostile non-decision-maker (here, the supervisors, or, the “monkeys”) exercised such a “singular influence” over the decision-maker (here, Ms. Buck, or the “cat”) that the termination was based on “blind reliance.”
The Supreme Court in turn reversed the Seventh Circuit’s decision, remanding the case to the Circuit to determine whether the case could succeed under the Supreme Court’s new interpretation of “cat’s paw” liability. Under this new interpretation, an employer may be liable for discrimination where (i) acting within the scope of employment, a supervisor performs an act motivated discriminatory animus; (ii) the supervisor intends the act to result in adverse employment action against the employee; and (iii) the act is a proximate cause of the ultimate adverse employment action.
Proximate cause requires only “’some direct relation between the injury asserted and the injurious conduct alleged,’ and excludes only those links that are’ too remote, purely contingent, or indirect.’” Because it is common for injuries to have multiple proximate causes, the decision-maker’s (Ms. Buck’s) exercise of judgment does not negate the relevance of the non-decision-makers’ (the supervisors’) discriminatory actions. An employer may escape liability only if it can show that the ultimate adverse employment action was unrelated to the original biased action.
Although Staub was decided under USERRA, the Supreme Court suggested that the framework of the decision will also influence cases brought under Title VII and any other statute that allows for employer liability where a discriminatory act is a proximate cause (not necessarily the only proximate cause) of the ultimate adverse employment action. As Justice Alito explained in his concurring opinion, employers are left wondering how they may avoid liability, considering that an employer may be held liable if it innocently takes into account adverse and discriminatory information provided by a supervisor, and perhaps even by a low-level employee.
How to Avoid Employer Liability In Light of Staub
- Establish strong anti-discrimination policies. Train supervisors, even those without ultimate decision-making authority, on these policies, and provide procedures for employees to raise concerns about policy violations
- Complete performance reviews on a regular basis, documenting employee performance issues that might later be cause for adverse employment action.
- Conduct an independent investigation before taking an adverse employment action. Buck’s cursory independent investigation in Staub was not enough to avoid employer liability. Employers must ensure, to the greatest extent possible, that the investigation is thorough, and that the ultimate adverse employment action is unrelated to discriminatory biases. At minimum, discuss the situation with the affected employee before taking the adverse action and follow up on the employee’s concerns.
- Obtain input from multiple sources before taking an adverse action.
- When dealing with a reduction in force, record the business necessity underlying the reduction. Further, use objective criteria in determining how individual employees will be affected, and document these objective criteria along with their application to individual employees.
- Note and take special care in cases in which an employee has conflict with a particular supervisor or manager. In this case, Straub actually challenged his discipline. In many cases, this may be enough of a red-flag to alert employers that they should consider some type of additional investigation to insulate the employer from cat’s paw liability.
In most courts, employees will now have an easier time establishing that a supervisor’s animus had the requisite causal effect under anti-discrimination statutes. Because Staub provides little guidance for employers in how to avoid liability, it is crucial that employers be aware of potential liability imputed from supervisors who may not make the ultimate decision, take precautionary steps where appropriate, and consult with legal counsel to ensure that their anti-discrimination polices and practices are sound.
Employers may be liable for discrimination even though the final decision maker had no discriminatory intent
On March 1, 2011, the U.S. Supreme Court issued its much anticipated decision in Staub v. Proctor Hospital, addressing for the first time the “cat’s paw” doctrine of employer liability in discrimination cases. Under the cat’s paw doctrine, an employee seeks to hold his employer liable based on the discriminatory intent of a supervisor who was not responsible for making the ultimate employment decision.
This case arose under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Staub, an angiography technician for Proctor Hospital, was a member of the Army Reserves, which required him to attend drill one weekend a month and to train full time for two to three weeks a year. Mulally, Staub’s immediate supervisor, and Korenchuk, Mulally’s supervisor, were hostile to Staub’s military obligations. Mulally told one department employee that Staub’s military duty had been a strain on the department and asked the employee to help Mulally “get rid” of Staub. Korenchuk ridiculed Staub’s military service as a waste of time and taxpayer money. In January 2004, Mulally issued Staub a “Corrective Action” disciplinary warning for purportedly violating a rule requiring him to stay in his work area even when he had no patient. Staub disputed the corrective action claiming there was no such rule and, even if there were, he did not violate it.
On April 2, 2004, Day, a co-worker of Staub’s, complained to Buck, the hospital’s vice president of human resources, about Staub’s frequent unavailability and abruptness. Shortly thereafter, Korenchuk advised Buck that Staub had left his desk without informing a supervisor, in violation of the January Corrective Action – an accusation disputed by Staub. Buck relied on Korenchuk’s accusation and, after reviewing Staub’s personnel file, decided to fire Staub. The termination notice stated that the decision was based on Staub’s having ignored the directive in the January Corrective Action. Staub challenged his termination through the hospital grievance process, denying that he had violated the Corrective Action and claiming that Mulally had fabricated the allegations on which the Corrective Action was based out of hostility toward his military obligations. However, Buck refused to change her final decision.
The Supreme Court Held That:
- An employer may be liable for discrimination under USERRA, even though the final decision maker had no discriminatory intent, where another supervisor performs an act motivated by anti-military intent that is intended by the supervisor to cause an adverse employment action, and that act is a proximate cause of the ultimate employment action; in other words, the ultimate decision maker relies on the supervisor’s act in making the final employment decision.
- Intent and responsibility for the adverse employment action can be attributed to an earlier agent, e.g., Staub’s supervisors, if the adverse action is the intended consequence of the agent’s discriminatory conduct. As long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter, i.e., knowledge, required for liability under USERRA.
- The only way an employer can escape liability for discrimination is if the ultimate decision maker’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action.
- The supervisor’s biased report may remain a causal factor for the discrimination if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.
- If the independent investigation relies on facts provided by the biased supervisor – as is necessary in any case of cat’s paw liability – then the employer (either directly or through the ultimate decision maker) will have effectively delegated the fact-finding portion of the investigation to the biased supervisor.
What This Means for Employers
- An employer will no longer be able to rely on the ultimate decision maker’s independent investigation as a defense to liability for the discriminatory intent of lower level supervisors, unless the employer can identify a reason for the adverse action that is wholly unrelated to the information or reports provided by the lower-level supervisors.
- To avoid liability, before making employment decisions based on information/reports from an employee’s supervisors, employers will now need to determine whether the employee claims that his supervisors were discriminating against him on the basis of his protected class and whether the adverse employment action can be justified on some basis other than the information/report from the employee’s supervisor.
- The Supreme Court noted that USERRA is similar to Title VII of the Civil Rights Act of 1964. Accordingly, courts will in all likelihood apply this same analysis to cat’s paw cases under Title VII, the Americans With Disabilities Act, and the Age Discrimination in Employment Act.