US Supreme Court Declares that Discriminatory Bias of Non-Decision Maker/Supervisor Taints Decision to Fire Employee under Cat’s Paw Theory

Plaintiff’s employment lawyers have long been urging the courts to follow an important reality in employment decisions: discriminating individuals can taint an employment decision made by someone else, and the fact that the final decision maker doesn’t harbour a discriminatory motive himself/herself, should not protect the employer. Some courts have already accepted the “cat’s paw” theory, including several circuit courts. See Long v. Eastfield College (5th Cir. 1996) 88 F.3d 300, 307; Kientzy v. McDonnell Douglas Corp. (8th Cir. 1993) 990 F.2d 1051, 1057; Kendrick v. Penske Transp. Services, Inc. (10th Cir. 2000) 220 F.3d 1220, 1231; Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398. California’s courts of appeals have also adopted this standard. See, e.g., Reeves v. Safeway Stores, Inc. (2004) 121 Cal. App. 4th 95 (applying cat’s paw theory in a retaliation claim).

In good news for employees, the U.S. Supreme Court has now adopted its own version of cat’s paw liability in Staub v. Proctor Hospital (March 1, 2011) 131 S.Ct. 1186, making employer liability where discriminatory animus taints the ultimate decision to fire the law of the land.

The Supreme Court adopted this standard while interpreting USERRA (the Uniformed Services Employment & Reemployment Rights Act), which prohibits discrimination against an employee due to his or her military status or obligations. 38 U.S.C. § 4311. Like many statutes prohibiting employment discrimination, if the protected status (here military service) is a “motivating factor” in the decision to fire, the decision to fire is illegal.

Staub v. Proctor applied the cat’s paw theory of discrimination to a reservist fired because his immediate supervisors resented his military service, even though the final decision maker didn’t herself harbour a discriminatory motive. The US Supreme Court held that, if the lower level supervisor’s “acts are motivated by discrimination, and this is a proximate cause of the termination, the employer is liable.” This was true because the human resources manager who made the decision relied upon the factual assertions presented by the discriminating supervisors.

Since the standard for discrimination claims is the same as above for Title VII and the California Fair Employment & Housing Act, there is every reason to assume that all courts will adopt this standard for claims brought under these acts. This obviates an unnecessary and unfair hurdle of proving that the ultimate decision maker is a bad actor and makes it more difficult for employers to hide behind a multilayered decision making process.

The Court did leave the door open for employers to insulate themselves from the discriminatory motive of non-decision makers by conducting a truly independent investigation which does not rely upon the discriminating supervisor’s taint or fact finding. Thus, the glass here is half full and half empty. It helps employees by clarifying the standard, but provides employers with a way out, if they are scrupulous about their decision making and investigative processes.

Jody LeWitter
March 12, 2011

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