Legal Updates

Don't Get Clawed By The Cat's Paw

Suppose that you are a human resources manager and that your job duties include deciding whether to approve employee discipline recommendations submitted by lower-level supervisors.  One of your company’s supervisors tells you that he wants to discharge an employee who has disregarded work instructions and failed to perform up to the supervisor’s expectations.

In fact, that supervisor actually wants to get rid of the employee not because of any legitimate performance concerns, but out of some discriminatory motive – for instance, the employee’s sex, religion or military service.  However, you are unaware of any such bias on the supervisor’s part, and when you review the employee’s personnel file, you see that he has received repeated warnings for disciplinary and performance issues.  Thus, you see no reason to question the supervisor’s judgment, and you approve the termination recommendation.

Can the employee then sue your employer for discrimination based on the supervisor’s unlawful bias, even though you were unaware of that bias and decided to approve the termination for what you believed to be entirely legitimate reasons?

Under a recent U.S. Supreme Court decision, Staub v. Proctor Hospital, the answer is yes.  The Court held that an employer can be liable for taking adverse action against an employee based on information provided by a biased supervisor, even where the manager who actually carries out the disciplinary action has no such animus and is unaware of the supervisor’s bias.  (Such cases are known as “cat’s paw” claims, based on a French fable involving a monkey that persuaded a cat to pull chestnuts out of a fire for the monkey, thereby burning the cat’s paw.)

As a result of the Court’s Staub decision, employers need to be vigilant for proposed disciplinary actions that could result in “cat’s paw” claims, and take appropriate steps to protect themselves against potential liability for such claims.

Facts

The plaintiff, Vincent Staub, worked as an angiography technician for Proctor Hospital, in Peoria, Illinois.  Staub was also a member of the U.S. Army Reserves, which required him to devote one weekend per month and an additional two to three weeks per year to military training.

Two of Staub’s managers – his immediate supervisor, Janice Mulally, and Mulally’s supervisor, Michael Korenchuk – took an openly negative attitude toward Staub’s military service, viewing his mandatory training absences as a burden to his department’s operations.  For instance, Mulally asked another employee to help her “get rid” of Staub, and Korenchuk opined that Staub’s reserve service was a “waste of taxpayers’ money.”  Mulally also issued a formal “corrective action” to Staub, stating that he had repeatedly been absent from his work area without permission, and requiring that Staub report to one of his supervisors whenever he had temporarily exhausted his angiography caseload.

Subsequently, Korenchuk reported to the Hospital’s Vice President of Human Resources, Linda Buck, that Staub had violated this corrective action.  Buck ultimately decided to terminate Staub’s employment, based on Korenchuk’s input (which Buck did not know was tainted) and Buck’s review of Staub’s personnel file, which reflected several additional complaints about Staub by other supervisors.

Upon learning of his termination, Staub filed an internal grievance claiming that his supervisors were biased against him because of his military reserve service, and that the incidents underlying the corrective action had been fabricated.  Buck, however, did not follow up on Staub’s allegations by speaking with Mulally and Korenchuk, and, consequently, the termination remained in effect.

Staub then filed suit against the Hospital, claiming that he had been discharged because of his reserve service, in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).  A jury ruled in Staub’s favor, but the U.S. Court of Appeals for the Seventh Circuit reversed, holding that Staub could not prevail because he had failed to show that his biased supervisors exercised a “singular influence” over the Hospital’s decision to terminate his employment.

Supreme Court’s Decision

In an opinion by Justice Antonin Scalia, the Supreme Court unanimously reversed the Seventh Circuit’s decision.  Rejecting the narrow standard applied by the Seventh Circuit, the 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.

Thus, because Mulally and Korenchuk’s biased actions were a “proximate cause” – i.e., a significant contributing factor – of Buck’s decision to discharge Staub, the Supreme Court concluded that the Hospital could be found liable to Staub under USERRA, even though there was no evidence that Buck herself held any anti-military animus.

Justice Scalia also noted in his opinion that the relevant language of USERRA is very similar to that of Title VII.  This suggests that courts will extend the Staub holding to other forms of employment discrimination, such as race, sex, religion and national origin.  In addition, it is possible that “cat’s paw” liability will extend to claims under the Age Discrimination in Employment Act, as well as retaliation claims under various federal statutes, such as the Occupational Safety and Health Act, which protects employees who complain of unsafe workplace conditions.

Indeed, “cat’s paw” retaliation claims may crop up in numerous contexts after an employee exercises a statutory right (e.g., by taking family and medical leave) and later is disciplined or discharged, especially when the employee and his or her supervisor have not gotten along, fueling suspicion that the supervisor was just waiting for a reason “to get rid of” the employee.

Notably, the Court specifically declined to rule that conducting an independent investigation into an employee’s claims of unlawful animus will automatically shield an employer from possible “cat’s paw” claims.  Instead, the Court stated that such an investigation would simply be one factor in determining whether a lower-level supervisor’s unlawful bias played a significant role in an adverse employment action.

In addition, the Court declined to address the potential implications of actions by biased non-supervisors that influence an adverse employment decision.  Thus, it seems possible that future court rulings could hold employers liable for unwittingly acting on the basis of information provided by biased co-workers as well.

Recommendations For Employers

In light of the Staub decision, there are a number of actions that employers should consider taking to shield themselves against possible “cat’s paw”claims:

• Provide anti-discrimination and anti-retaliation training to all supervisors, including those who do not have independent authority to discipline employees.
• Train managers who approve and implement terminations and other disciplinary actions to recognize potentially questionable performance evaluations and warnings, and to seek guidance from their own supervisors (or Human Resources) when a proposed disciplinary action rests on a seemingly questionable foundation.
• Ensure that Human Resources thoroughly investigates all proposed terminations and other significant disciplinary measures.
• Consult with counsel whenever there is reason to believe that unlawful animus may have tainted a disciplinary recommendation.

These steps should help to minimize the possibility that an organization might unknowingly base disciplinary action, or a negative performance appraisal, upon a protected characteristic.  Understanding these issues should also help avoid even the appearance of impropriety in dealings with employees, which should help to reduce the risk of discrimination and retaliation claims.