Making it a bit easier for plaintiffs to prevail in their discrimination claims, the Supreme Court holds that the employer may be liable even if the decisionaker did not harbor any discriminatory bias toward the plaintiff. This ruling sustains the so-called Cat's Paw theory of discrimination.
The case is Staub v. Proctor Hospital, decided on March 1. In this case, the plaintiff sued under USERRA, the law that prohibits discrimination against employees with military obligations. Two supervisors made it clear they did not like Staub's military commitments, and they prepared reports that criticized his violation of company policy. Staub argued at trial that these reports were false. The decisionmaker terminated Staub's employment, in part, because of these negative reports. Although the jury found in Staub's favor, the Seventh Circuit threw out the verdict, holding that the nondecisionmaker supervisors did not exercise "singular influence" over the termination decision.
The Supreme Court rejects the Seventh Circuit's narrow standard and sets forth the following rule: "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 the proximate cause of the ultimate employment action, then the employer is liable under USERRA." This holding will certainly apply under Title VII and the Age Discrimination in Employment Act, among other employment laws.
First, what does Cat's Paw mean? It derives from one of Aesop's fables, where "a monkey induces the cat by flatter to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing." The Cat's Paw theory recognizes that many workplaces have multiple decisionmakers and that supervisors with discriminatory animus may influence an otherwise neutral final decisionmaker. That nefarious influence allows the plaintiff to win.
But, read closely, this decision requires the plaintiff to show that the biased supervisors intended that the plaintiff suffer an adverse employment action. The Court writes: "The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did cause, an adverse employment action." This rule compliments the Court's observation that "when a decision to fire is made with no unlawful animus on the part of the firing agent, but partly on the basis of a report prompted (unbeknownst to that agent) by discrimination, discrimination might perhaps be called a 'factor' or a 'causal factor' in the decision; but it seems to us a considerable stretch to call it a 'motivating factor.'" To win under the Cat's Paw, the plaintiff has to show the biased supervisors used their influence on an unsuspecting decisionmaker to get the plaintiff fired (or demoted).
Confirming that the lower-level supervisor's discriminatory actions may be imputed to the company only when the supervisor intended that the plaintiff suffer an adverse action, analyzing the Cat's Paw rule to the evidence, the Supreme Court finds that the Seventh Circuit should not have vacated the verdict because there was evidence that the two supervisors who disliked Staub's military obligations and wrote up negative reports about his employment "had the specific intent to cause Staub to be terminated" based on testimony that they wanted to "get rid of" Staub. The Court concludes that "a reasonable jury could infer that [the supervisor] intended that Staub be fired."
In the Second Circuit, relevant language in this area reads like this: "We recognize that the impermissible bias of a single individual at any stage of the promoting process may taint the ultimate employment decision in violation of Title VII. This is true even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the promotion process." Bickerstaff v. Vassar College, 196 F.3d 435, 450 (2d Cir. 1999). This language may run afoul of the new rule set forth in Staub, which requires more than just a discriminatory link in the chain leading to the plaintiff's termination.
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