Labor: Doggedly Avoiding The “Cat’s Paw”

Employers can prevent discrimination-based claims following employee terminations.

No responsible employer would let a supervisor discipline, demote, or terminate an employee if the employer knew that supervisor had a discriminatory bias against employees of that race, gender, religion, national origin or other protected status. A supervisor who is known for making racist statements or one who harasses and demeans women would not likely be retained as an employee, let alone be empowered to make employment decisions.

But some employers rely too heavily on the “flipside” of this idea. They believe that they are safe if the supervisor making the employment decisions is not personally a part of those issues, even where there are some claims or evidence of discrimination or harassment. But the “cat’s paw theory,” which the Supreme Court recently endorsed and had been gaining ground in recent years, can make relying on the supposedly isolated supervisor’s decision very dangerous.

The “cat’s paw” concept comes from a centuries-old fable involving a sly monkey who talks a cat into taking chestnuts from a fire. The monkey ends up well fed on the chestnuts, while the cat ends up with scorched paws.

What does this have to do with employment law? When faced with the situation of an employment decision made by a decision maker seemingly isolated from discriminatory actions by others, plaintiff’s lawyers have tried to find evidence that the decision maker was influenced by an individual in management who has said or done things that suggest a discriminatory intent toward certain groups. Simply put, the decision maker (and the employer) becomes the cat with burned paws, while the discriminatory manager is the monkey with the full belly.

After years of “cat’s paw” cases percolating in trial and appellate courts across the country, the theory was finally tested this year in the Supreme Court. In Staub v. Proctor Hospital, the employee was a military reservist who had occasional commitments that interfered with his work, but which were protected under federal law (known as the Uniformed Services Employment and Reemployment Rights Act, or USERRA).

Certain supervisors criticized the employee’s work and disciplined him, and evidence suggested that these criticisms and discipline were due to the supervisors’ dislike of the employee’s military commitments and related absences.

Ultimately, an executive terminated the employee based, in part, on these criticisms and discipline. There was no evidence the executive disliked the employee’s military commitments or took his military status into account in the termination. But the employee argued that since the supervisors’ criticisms and discipline were considered by the executive, and these criticisms were false and were based on the supervisors’ dislike of his military status, the decision was discriminatory too. Thus, to use the analogy of the cat’s paw again, the supervisors (monkeys) got the executive (cat) to carry out their goal of getting rid of the employee (and here it was for improper reasons prohibited by USERRA).

The Supreme Court found that the “cat’s paw” theory was properly used by the employee to hold his former employer liable for discrimination. The Court ruled that an employer is liable for discrimination when:

  1. A supervisor (who by position is an agent of the company takes an action that is motivated by a discriminatory animus,
  2.  A supervisor’s action is intended to cause an adverse employment action
  3.  The employer is liable for the discrimination when the act is a proximate cause of the employment action.

Here, there was evidence that the employee’s supervisors’ criticism and discipline was due to his military status and intended to lead to his termination, and therefore made the employer was liable for the underlying supervisors’ discriminatory intent. Even though there was no allegation that the executive harbored any discriminatory intent or that he had any idea of the supervisor’s apparent plan, his termination decision was infected by their discrimination.

The Supreme Court’s decision relied on an analysis of general tort law and agency principles. The Court recognized that a decision to the contrary would enable an employer to “isolate” a personnel file and let a decision maker use that file to make a decision. But if discriminatory actions had been taken and made part of the file, this could improperly shield the decision maker so that intended discriminatory actions could be given effect.

The Court also rejected the idea that a decision maker performing an “independent investigation” and reaching the same conclusion was an absolute defense to the cat’s paw theory. Only where an investigation independent of the underlying discriminatory animus and action resulted in the decision maker finding unrelated reasons to take the same action would such an investigation enable the employer to avoid liability for the supervisor’s discriminatory intent and act.

While the Staub case dealt with discrimination of military members, the decision will apply to Title VII claims of race, gender, national origin or religious discrimination. The Court itself noted that the relevant statutory language in USERRA and Title VII are quite similar. So, this approval of the cat’s paw theory means employers cannot simply accept without further consideration the recommendations of others in supervision to make an employment decision.

Instead, the decision maker must try to verify that a legitimate, non-discriminatory reason truly exists to support the employment decision, and that there is nothing to suggest that the recommenders of the action or others in supervision are pursuing the action out of bias or discrimination.

While this otherwise expansively employee-friendly decision is limited to some degree by the requirement to show not just discrimination but also intent to harm the employee, intent is a tricky concept that does not easily lend itself to a decision on summary judgment.

This decision assuredly means another significant avenue for an employee to paw its way in front of a jury over a claim of discrimination. Wise employers will review employment decisions carefully and put steps in place to try to declaw this cat.

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