By Blerina Kotori
Why should employers worry about the “cat’s paw”?
In 1679, La Fontaine memorialized Aesop’s famous Cat’s Paw fable into verse as a metaphor for princes who do kings’ dirty deeds and receive no reward. In the fable, a monkey convinces a cat to take roasting chestnuts out of a fire. After the cat burns its paws removing the chestnuts, the monkey makes off with the chestnuts, leaving the cat with nothing. In 1990, this fable was adopted in employment discrimination lawsuits to label a theory for holding employers liable. Under the cat’s paw theory, an employer may be liable for the discriminatory motives of a supervisor, even if that supervisor did not make the ultimate decision to discipline or terminate the employee.
In March 2011, the United States Supreme Court considered the theory as applied to the anti-discrimination provisions of the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA makes it illegal to discriminate against an employee who is a member of the uniformed services. In Staub v. Proctor Hospital, 131 S. Ct. 1186 (March 1, 2011), Staub was an angiologist for Proctor whose membership in the Reserves required him to take time off work for training. There was evidence that his direct supervisor, Mullaly, and her supervisor, Korenchuk, were hostile against Staub for taking time off work for training and made these feelings known. They placed him on a corrective action for violating a company rule that required him to remain in his work area when he was not with patients. Although the existence of the rule was hotly contested in the case, a third supervisor, Buck, ultimately fired Staub for violating this rule and the corrective action. Buck spoke to at least one other employee before terminating Staub. Staub sued Proctor under the cat’s paw theory.
The Supreme Court reasoned that the fact that Buck may have exercised his own independent judgment or conducted his own independent investigation was not sufficient to shield Proctor from liability in this case because the corrective action that gave rise to the termination was initiated by Mullally and Korenchuk. The Court held that if a supervisor performs an act motivated by an antimilitary animus that is intended to cause an adverse employment action and that act brings about the ultimate employment action, the employer is liable under USERRA. For the Court, this was a straightforward causation issue.
This holding has powerful repercussions for employers. First, the courts around the nation will apply it to similar cases under other discrimination laws such as Title VII. Second, an employer will no longer always be able to avoid liability just because the supervisor who made the ultimate decision to terminate or discipline the employee conducted his or her own investigation. If evidence suggests that another supervisor’s discriminatory animus set in motion a chain of events that were the proximate cause of the ultimate adverse action, the employer may be found liable.
Although the Supreme Court did not specifically suggest ways in which an employer may shield itself from liability, the Staub decision contains some clues about steps employers should take to avoid cat’s paw liability. First, you should establish clear lines of authority among supervisors and train them on the meaning of cat’s paw theory, discrimination, and retaliation. Second, Human Resources officials should establish grievance policies for dealing with complaints or rumors of biased supervisors. These policies should include a reporting procedure that bypasses the supervisor at issue. Third, employers should evaluate whether there are sufficient reasons to support the discipline besides the reasons from the allegedly biased supervisor(s). Though the Court refused to adopt a hard-and-fast rule that investigations will always be an effective shield, the Staub decision strongly indicates the Court’s preference for a more aggressive investigation by Human Resources or in-house counsel. An aggressive investigation is particularly important when various supervisors have issued different kinds of discipline over the course of the employee’s career. Lastly, when in doubt, consult your attorney before taking disciplinary action when the employee has raised a suggestion of bias by one or more intermediate supervisors.