In Staub v. Proctor Hospital (09-400) (slip opinion here), the United States Supreme Court today unanimously upheld the “cat’s paw” theory of discrimination in a case brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA). As a result, employers may now be more vulnerable to discrimination claims brought under USERRA, Title VII, and other statutes that prohibit workplace discrimination.
The “cat’s paw” theory derives from an Aesop’s fable in which an enterprising monkey persuades a cat to retrieve chestnuts roasting on an open fire. The monkey then makes off with the chestnuts, leaving the cat with nothing but its blackened paws. In the employment context, the theory refers to the situation in which the official who actually takes the adverse action against an employee (for example, the HR manager) acts without any personal discriminatory animus, but is influenced by another manager or supervisor who harbors discriminatory animus against the employee. Under these circumstances, the HR manager is the cat, while the underlying supervisor is the monkey.
In Staub, the employee worked as a technician at Proctor Hospital in Peoria, Illinois. He was also in the Army Reserve, which caused him to miss considerable time from work. His absences did not sit well with his supervisors, who – according to the evidence adduced at trial – disparaged his military service and wanted to get rid of him. After the vice president of HR terminated him, Staub sued the hospital under USERRA, claiming that the VP was influenced by the supervisors’ anti-military animus. A jury found in Staub’s favor, but the Seventh Circuit reversed the verdict on the ground that in a cat’s paw case, the plaintiff cannot succeed unless the nondecision-maker (i.e., Staub’s supervisors) exercised such “singular influence” over the decisionmaker (i.e., the VP of HR) that the decision was the product of “blind reliance.” The Seventh Circuit failed to find such singular influence.
USERRA prohibits discrimination based upon a person’s membership in or obligations to a uniformed service. 38 U.S.C. § 4311(a). An employer violates USERRA “if the person’s membership … is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.” § 4311(c). The “central difficulty” facing the Staub Court was construing the phrase “motivating factor in the employer’s action.” The hospital argued that it could not be liable unless the de facto decisionmaker (i.e., the VP of HR) was motivated by discriminatory animus. Because there was no evidence that the VP harbored her own animus against Staub, the hospital contended that it could not be liable under USERRA.
The Court rejected the hospital’s argument, relying instead on long-established principles of tort law, under which “it is axiomatic … that the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm.” The Court then held that “if a supervisor performs an act motivated by [discriminatory] 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.” Applying this holding to the facts of the case, the Court found that there was sufficient evidence for the jury to have concluded that Staub’s supervisors were motivated by their anti-military animus toward him and that their actions were causal factors underlying the VP of HR’s decision to terminate him.
While this case was decided under USERRA, the Court noted the statute’s similarity to Title VII. Therefore, it is by no means a stretch to assume that the cat’s paw theory will be extended to discrimination claims based upon sex, race, age, and other protected categories. Employers are encouraged to redouble their training efforts to insure that all levels of management are instructed on what constitutes unlawful discrimination.