“Cat’s Paw” Theory of Liability

Recently, the Supreme Court issued an opinion upholding the US “cat’s paw” theory of employer liability, under which an employer may be liable for discrimination in an adverse employment decision against an employee where the ultimate decision maker is unbiased and has no discriminatory motives. Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011).  Under this theory, the discriminatory motive of a non-decision maker is imputed to the decision maker, and employer, where the discriminator has some significant influence that leads to the adverse employment action. Id.

The term “cat’s paw” is derived from the Aesop’s fable, “The Monkey and The Cat,” where a devious monkey induced a cat to pull roasting chestnuts from a fire for both he and the cat to share. In doing as asked, the cat burned its paws, while the monkey ate the chestnuts from the cat unscathed, leaving her with nothing to eat.  The moral of the story being, do not be fooled into performing or accomplishing another’s tasks.  In employment discrimination cases, a “cat’s paw” scenario is presented when a biased employee or manager, who lacks decision making power, dupes a formal decision maker into making an adverse employment decision.

This “scheme” may subject the employer to an employment discrimination action, and is likely to occur where there is simply a “rubber stamping” without a complete investigation, which is necessary for the employer to purrr-tect itself from employment discrimination liability.

In Staub, Plaintiff, working as an angiography technician, sued his former employer alleging discrimination under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”),¹ asserting that two of his supervisors, Janice Mulally and Michael Korenchuk, were hostile towards his military obligations.² Id. at 1189-90.  Plaintiff also alleged that in January 2004, Mulally issued him a disciplinary warning for purportedly violating a company rule requiring him to stay in his work area whenever he was not working with a patient, which included a directive requiring him to report to Mulally or Korenchuk when his cases were completed. Id. at 1189.  Upon receipt of a report from Korenchuk, indicating Plaintiff failed to comply with the above-mentioned directive, the company’s Vice President of Human Resources (“V.P.”) made the decision to terminate Plaintiff. Id. Plaintiff did not contend that the V.P. was motivated by hostility; however, he did assert that both Mulally and Korenchuk’s actions were motivated by anti-military hostility, and that their actions led to his eventual termination. Id. at 1190.

A jury initially ruled in favor of Plaintiff, finding that Plaintiff’s military status was a motivating factor in the decision to discharge him, only to be reversed by the Seventh Circuit. Id. Ultimately, the Supreme Court reversed the Seventh Circuit’s decision, incorporating the tort law concept of proximate cause. Id. at 1191-93.  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 employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Id. at 1194.  Additionally, an employer would be liable only when the supervisor acts within the scope of his employment, or when acting outside the scope of his employment and liability would be imputed to the employer under traditional agency principles. Staub v. Proctor Hospital, 131 S.Ct. 1186, 1194 (2011); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 758 (1998).

Consequently, this decision is likely to increase employer accountability for the actions and recommendations of lower-level non-decision making supervisors.  As such, in order to be purrr-tected, employers must be alert and undertake investigations to ensure that adverse employment actions are taken only after an independent, objective evaluation of all factors.  This may require employers review prior discipline imposed and closely scrutinize the reasons given by supervisors for the suggested employment action.  The challenge for employers is that it seems to be practically impossible to review an employee’s performance without seeking input from that employee’s supervisor.  The “cat’s paw” theory highlights the importance of employers conducting diligent and independent investigations prior to terminating employees, as merely undertaking a “paper review” of an informer’s recommendation, without performing an independent investigation, will not be sufficient to shield an employer from liability if the recommendation is racially motivated.  The decision presumably raises the bar for employers hoping to avoid liability for employment decisions prompted by discriminatory animus, even when an unbiased decision maker made the final call after an impartial investigation.

In the wake of The Staub decision, although increasing employer accountability, the Court did provide some guidance on how an employer may avoid liability in “cat’s paw” cases, explaining that if the employer’s investigation results in an adverse employment action for reasons unrelated to the supervisor’s original biased action, the employer will not be exposed to liability. Staub, 131 S.Ct. at 1193.  Additionally, requiring the Plaintiff to establish that the non-decision maker (the individual alleged to have discriminatory motives) actually intended to cause the adverse employment action certainly raises the bar for Plaintiffs attempting to avoid summary judgment.  Furthermore, the Supreme Court did not address whether an employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the employment decision. Id. at 1194.  Such decision may provide employers with a defense if it is a co-worker’s alleged discriminatory intent that is at issue.³

1              The purpose of USERRA is “to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other “uniformed services:” (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service.”  See 38 U.S.C. § 4301.

2              While employed by Proctor, Plaintiff was a member of the United State Army Reserve, which required him to attend drill one weekend per month and train full time for two to three weeks per year.  Staub, 131 S.Ct. at 1189.

3              The Court noted that Plaintiff took advantage of Proctor’s grievance process, yet expressed no view as to whether Proctor would have an affirmative defense if he did not.