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Another Expansion of Federal Discrimination Laws: U.S. Supreme Court Rules that Employers Can Be Liable for Discriminatory Bias of Non-Decision Makers.
March 10, 2011

On March 1, 2011, the Supreme Court ruled in Staub v. Proctor Hospital, No. 09-400, that an employer can be liable for the discriminatory bias of a supervisor, even if the final decision maker did not harbor any discriminatory bias.  Specifically, under what has been called the  “cat’s paw” theory of liability, if the employer’s decision to terminate an employee is motivated by a supervisor’s discriminatory bias and if such bias is the proximate cause of the employee’s termination, the employer can be liable for discrimination.  The term “cat’s paw” originates from a 17th Century fable in which a monkey convinces a cat to steal chestnuts from a fire.  The cat burns her paw, and the monkey enjoys the chestnuts.  In the employment context, the term applies to decisions made by unbiased decision makers who are influenced by biased subordinate employees.   

In Proctor Hospital, Petitioner Vincent Staub was employed by Proctor Hospital while also serving as a member of the United States Army Reserve.  Staub asserted that his immediate supervisors were hostile to his service in the Army Reserves and issued false written and verbal disciplinary warnings.  Relying on the disciplinary warnings and the contents of Staub’s employment file, Proctor Hospital’s vice president of human resources terminated Staub.   

Staub sued under the Uniformed Services and Reemployment Act of 1994 (“USERRA”), alleging that his discharge was motivated by hostility to his obligations as a military reservist.  Staub did not allege that the Hospital’s vice president of human resources was hostile to his military service, but rather that the vice president relied on the supervisors’ reports who did hold discriminatory animus.  Relying on general principles of agency and tort laws, a unanimous Supreme Court found that an employer can be liable when discriminatory animus from a direct supervisor is the proximate cause of the ultimate decision maker’s employment decision.  “We therefore hold that if a supervisor performs an act motivated by antimilitary 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 rejected the Hospital’s argument that the decision maker’s independent investigation should shield the Hospital from liability.  However, the Court explained that an employer could avoid liability if the decision maker’s investigation results in an adverse employment action for reasons unrelated to the supervisor’s biased action.  

Notably, the Court explained that USERRA is “very similar” to Title VII, which prohibits employment discrimination based on race, color, religion, sex or national origin.  Therefore, employers can expect that the Court’s reasoning will likely extend to other federal statutes that prohibit discrimination. 

The lesson for employers is clear: Don’t simply rubberstamp the recommendations made by subordinate supervisors or managers.  Instead, decision makers will need to look behind subordinates to make sure that the recommendations are justified and form an independent decision, not influenced by the subordinate’s opinions, recommendations or decisions, that the adverse action is warranted by the employee’s conduct.  Employers also should train supervisors and managers in proper discipline and termination procedures, including that such decisions cannot be based on protected characteristics, and that evidence of performance and misconduct issues should be preserved so that the final decision maker can review objective evidence justifying employment decisions. 

For more information, please contact a member of Moore & Van Allen's Employment & Labor Practice Group.

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