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U.S. Supreme Court Upholds "Cat's Paw" Theory of
The United States Supreme Court recently upheld the
"cat's paw" theory for proving discrimination. Under the cat's paw theory, a
plaintiff can prove discrimination even when the ultimate decision-maker to the
adverse action did not harbor any discriminatory animus toward the plaintiff.
The "cat's paw" refers to a theory of liability in which a lower level
supervisor harbored discriminatory animus toward the employee and, because of
that animus, tainted the "innocent" decision-maker's decision to take the
In Staub v. Proctor Hospital, the employee, Staub,
worked as a medical technician at Proctor Hospital. He also served in the
United States Army Reserve, which required him to drill one weekend per month
and to train full-time for two to three weeks per year. Staub believed that his
immediate supervisor ("Mulally") and second level supervisor ("Korenchuk") were
hostile towards his military obligations.
In January 2004, Mulally and Korenchuk issued Staub a
disciplinary warning for allegedly violating a hospital rule which required
employees to stay at their work areas when not working with patients. Proctor's
corrective action plan for Staub included a directive advising Staub to report
to Mulally and Korenchuk when he had no cases and when his work was complete.
In April 2004, a co-worker complained to Proctor's
Director of Human Resources about Staub's frequent unavailability. Mulally and
Korenchuk were asked to resolve this issue. Subsequently, Korenchuk informed
the Director of Human Resources that Staub had left his desk without notifying
a supervisor in violation of the January warning. After reviewing Staub's
personnel file, the Director of Human Resources terminated Staub's employment.
Staub sued Proctor under the Uniformed Services
Employment and Reemployment Rights Act ("USERRA"), alleging that his
termination was motivated by Mulally's and Korenchuk's hostility toward his
obligations as a military reservist. USERRA prohibits covered employers from
denying "initial employment, re-employment, retention in employment, promotion,
or any benefit of employment" on the basis of U.S. armed forces membership or
obligations. An employer violates USERRA if armed forces membership "is a
motivating factor" for an adverse employment action.
The jury agreed with Staub and awarded him $57,640 in
damages. On appeal, the Seventh Circuit reversed, holding that because the
Director of Human Resources was not wholly dependent on the advice of Mulally
and Korenchuk, Proctor was not entitled to judgment. The United States Supreme
Court granted certiorari.
The Supreme 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." The
Court's holding is limited to situations where: (1) a supervisor performs an
act motivated bydiscriminatory intent; (2) the supervisor intends an adverse
employment action to result; and (3) the supervisor's act is the proximate
cause of the ultimate employment action carried out by the decision maker.
Thus, if the supervisor's unlawful motivation persuades the decision maker in
whole or in part, then the adverse employment action will be unlawful.
In this case, the Court concluded that a reasonable jury could
have believed that Mulally and Korenchuk intended for Staub to be fired when
they disciplined him and later reported his alleged violation to the Director
of Human Resources. Moreover, "a reasonable jury could have believed that these
actions were motivated by Mulally and Korenchuk's hostility towards Staub's
What does this mean for employers? First, the "cat's paw"
theory of liability is applicable to many other anti-discrimination laws, not
just USERRA. Therefore, Employers should not rely solely upon the
recommendations of supervisors in making their employment decisions; instead,
it is important for the decision maker to undertake an independent review of
the circumstances before implementing any recommended action. In this way,
employers will have a better opportunity to identify and eliminate
discriminatory practices in the workplace. Finally; employers should train
supervisors to comply with the anti-discrimination and anti-retaliation laws.
Babst Calland's Employment and Labor Services Group will
continue to keep employers apprised of further developments related to this and
other issues. If you have any questions or need assistance in addressing the
above-mentioned area of concern, please contact John McCreary at (412) 394-6695
or firstname.lastname@example.org or Shefali Patel at (412) 773-8701 or email@example.com.
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