Non-Decision-Maker Bias & Discrimination Liability Under “Cat’s Paw” Theory in Supreme Court’s Staub v. Proctor Hospital Decision. Part I — The Decision.
By Beth Hanson, with George Lenard
In Staub v. Proctor Hospital, a long awaited decision on the so-called “ cat’s paw ” theory of discrimination, the Supreme Court ruled in favor of a fired employee, deciding when “an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.” This issue had been the subject of conflicting decisions in the lower courts for years.
Table of Contents
- What Is The Cat’s Paw Theory of Discrimination?
- Staub: The Supreme Court Issues A Definitive “Black-Letter” Rule on “Cat’s-Paw” Liability For a Non-Decisionmaker’s Discriminatory Bias
- Factual Events Leading to the Staub Cat’s-Paw Discrimination Decision
- The Seventh Circuit’s Ruling Against Staub: No “Cat’s Paw” Liability Because Decision-Maker Made Independent Investigation
- The Supreme Court Resolves the Difficult Question of Cat’s Paw Liability for Bias of Non-Decisionmakers
- Likely Application to Cats Paw Situations Under Other Discrimination Laws
What Is The Cat’s Paw Theory of Discrimination?
A few years ago, Frank A. Gumina explained well the cat’s paw theory:
Generally, the term “Cat’s Paw” is used to describe a person who is unwittingly manipulated by another to accomplish his or her purposes.
In the context of employment discrimination, “Cat’s Paw” refers to a theory of liability in which an employee, without formal authority to alter the terms and conditions of an employee’s employment and who harbors an unlawful discriminatory animus, influences the employer in making an adverse employment decision, such as a termination, by supplying the decision-maker misinformation or failing to provide relevant information.
Gumina also explained the significance of this theory, which is that it can defeat the common defense that an allegedly discriminatory employment decision was made by someone other than the person alleged to have expressed prohibited bias:
Under this theory, an employee can prevail in a discrimination suit even if the employer can successfully establish that the actual decision-maker harbored no discriminatory animus towards the employee if the employee can show that the decision-maker’s decision was influenced by another employee who did harbor an unlawful discriminatory animus towards the employee.
When Gumina wrote, in 2007, the Cat’s Paw theory was controversial, with its parameters and applicability loosely defined, at best. Not any longer.
Staub: The Supreme Court Issues A Definitive “Black-Letter” Rule on “Cat’s-Paw” Liability For a Non-Decisionmaker’s Discriminatory Bias
The Supreme Court resolved the conflict among the lower courts by announcing the rule that an employer is liable for a non-decisionmaker’s bias if:
- The non-decisionmaker performs an act motivated by unlawfully discriminatory animus (bias);
- In doing so, the non-decisionmaker intends to cause an adverse employment action; and
- the non-decisionmaker’s act is a proximate cause of the ultimate employment action challenged as discriminatory.
Factual Events Leading to the Staub Cat’s-Paw Discrimination Decision
The Supervisors’ Alleged Discriminatory Bias (Animus) Based on Military Service Obligations
Staub, the fired employee, worked as a medical technician and was a military reservist.
He alleged that his supervisor and her supervisor were both hostile to his military obligations, which required he attend drill one weekend a month and full time training for two to three weeks a year.
Staub presented evidence at trial of specific comments indicating that both supervisors wanted to get him fired.
The Bias of Lower Non-Decisionmaker Supervisors Allegedly Leads to the “Cat’s Paw” Firing by Upper-Level Decision-Makers
The following events led to Staub’s firing:
- His supervisor “issued Staub a ‘Corrective Action’ disciplinary warning for purportedly violating a company rule requiring him to stay in his work area whenever he was not working with a patient.” This warning required him to report to either supervisor whenever he had no patients and the cases in his area were completed.
- A co-worker complained to the VP of HR and the CEO “about Staub’s frequent unavailability and abruptness.” The CEO directed the creation of “a plan that would solve Staub’s ‘availability problems.’ “
- Before they had time to do so, one of the supervisors who allegedly wanted to get Staub fired for unlawful reasons (his military service) informed the VP of HR that Staub had left his desk without informing a supervisor, in violation of the Corrective Action.
- The VP of HR relied on this accusation, and after reviewing Staub’s personnel file, decided to fire him.
Evidence That Non-Decisionmaking Supervisors Made False Accusations To Get Staub Fired
According to Staub, the justification for the Corrective Action was false for two reasons: first, the company rule he allegedly violated did not exist; and second, even if it did, he did not violate it.
Staub also contended the subsequent accusation that he had violated the Corrective Action directive to notify his supervisors was false. He said he left a supervisor a voicemail before leaving his desk.
Staub challenged his firing through an available grievance process, claiming his supervisor had fabricated the allegation underlying the Corrective Action out of hostility toward his military obligations. The HR VP did not follow up with the supervisor or Staub to investigate this claim. Instead, after discussing the matter with another personnel officer, she adhered to her decision.
The Seventh Circuit’s Ruling Against Staub: No “Cat’s Paw” Liability Because Decision-Maker Made Independent Investigation
Staub sued under the Uniformed Services Employment and Reemployment Rights Act of 1994, claiming his discharge was motivated by hostility to his obligations as a military reservist.
He contended not that the decision-maker, the HR VP, had such hostility, but that the non-decision-making supervisors did. Their actions, alleged Staub, influenced the ultimate decision to fire him.
The district court jury found that Staub’s “military status was a motivating factor in [the] decision to discharge him” and awarded $57,640 in damages.
The Seventh Circuit’s Reversal, Rejecting Cats Paw Liability
The Seventh Circuit reversed, holding that the employer was entitled to judgment as a matter of law. It applied Seventh Circuit precedent under which “a ‘cat’s paw’ case could not succeed unless the non-decision-maker exercised such ‘singular influence’ over the decision-maker that the decision to terminate was the product of ‘blind reliance.’ ”
The Seventh Circuit found that under this standard he decision-maker had not blindly relied on the input from supervisors, but had also considered a conversation with a coworker of Staub and a review of his personnel file.
The Supreme Court Resolves the Difficult Question of Cat’s Paw Liability for Bias of Non-Decisionmakers
The Central Difficulty For the Supreme Court Is Construing “Motivating Factor” in the Context of a Cat’s Paw Situation
The Supreme Court began its analysis with the applicable statutory language of The Uniformed Services Employment and Reemployment Rights Act (USERRA), which requires that to prove a violation the employee’s military membership or obligation must be a “motivating factor in the employer’s action.”
The Court said that the biggest difficulty in the case was interpreting the meaning of “motivating factor in the employer’s action.” It observed that a motivating factor clearly exists when the company official deciding to take an adverse employee action is acting personally out of unlawful bias, but that the problem in a cat’s paw situation is that the official has no such bias, but was motivated by previous company action that may have been the product of such bias by someone else in the company.
The Court Struggles To Apply General Tort Law Principles to the Cat’s Paw Situation in Staub
The Court started to apply “motivating factor” by referring to general principles of tort law, starting with the requirement that “the actor intend the consequences of an act, not simply the act itself.” Thus, the Court stated that the supervisors must have intended to get Staub fired when they took the actions that ultimately had this consequence.
The Court mentioned conflicting authority in federal tort law on whether the discriminatory motive of certain of an employer’s agents (here, the supervisors) can be aggregated with the act of another agent (here, the HR VP) to establish liability. It concluded that this cannot be done because the statutory text “requires that discrimination be ‘a motivating factor’ in the adverse action” (emphasis in original).
At this point in its analysis, the court made a statement that employers might find comforting:
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’.”
However, in a seeming contradiction, the Court went on in the next paragraph to reject the employer’s contention that it could not be liable unless the decision-maker was motivated by discriminatory animus.
The Court then said there was a third way between these two extremes. It said that so long as the non-decision-maker intends, for discriminatory reasons, that the adverse action occur, he has the scienter — the knowledge of wrongdoing — required to be liable.
The Court applied the concept of proximate cause, stating that the exercise of judgment by the decision-maker does not prevent the earlier agent’s discriminatory action from being the proximate cause of the harm. It also said the decision-maker’s judgment cannot be considered a superseding cause, stating: “A cause can be thought ‘superseding’ only if it is a ‘cause of independent origin that was not foreseeable.’ ”
Supreme Court Gives Yellow Light (At Best) to Defense of “Independent Investigation” in a Cat’s Paw Situation
The “independent investigation” relied upon by the employer in Staub was weak, but perhaps similar to many companies’ HR practices: the decision-maker reviewed the personnel file, which contain a final warning; recalled a complaint about Staub by a fellow employee; and discussed .the impending decision with someone else in HR. She did not speak with Staub or the supervisors – not even after Staub filed a grievance claiming the termination had been based on false allegations.
The Court took a measured approach to the possibility that an independent investigation could break the chain of causation and insulate an employer from liability. Noting that there is “no principle in tort or agency law under which an employer’s mere conduct of an independent investigation has a claim-preclusive effect,” the Court declined to adopt ”a hard-and-fast rule.”
Instead, it stated that an employer will not be liable if their investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action.
On the other hand, the Court said, a supervisor’s bias may remain a causal factor and thus support liability if the employer’s investigation takes a supervisor’s biased report into account without determining that the adverse action was entirely justified without regard to the supervisor’s report. In such event, the employer is at fault because one of its agents committed an action based on a discriminatory bias that was intended to and did in fact cause an adverse employment decision.
Justices Alito and Thomas Weigh In
Justices Alito and Thomas concurred in the judgment, but applied somewhat different reasoning turning on whether the employer may be said to have effectively delegated decision-making authority rather than an analysis of proximate cause.
Under this analysis, the concurring Justices found sufficient evidence to support a finding that at least one of the supervisors had actually been delegated part of the decision-making authority.
The Supreme Court Concludes
Applying their analysis to the facts of this case, the Court thought it clear that the Seventh Circuit’s judgment must be reversed. Both supervisors were acting within the scope of their employment when they took the actions that allegedly caused Staub’s firing. A “reprimand … for workplace failings” constitutes conduct within the scope of an agent’s employment. The Court found that there was sufficient evidence that the supervisors intended to get Staub fired and that their actions were the proximate cause of the firing.
Likely Application to Cats Paw Situations Under Other Discrimination Laws
The Staub decision involved discrimination based on status as a military reservist in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), rather than the more common federal discrimination laws concerning race, gender, age, disability, and other forms of discrimination. The Court noted the similarity between the operative language of USERRA and that of Title VII. Their comment quite clearly intended to signal the lower courts to apply the same analysis to cases under Title VII, if not other discrimination statutes such as the Age Discrimination in Employment Act (ADEA) and Americans with Disabilities Act (ADA).