Courts have long struggled with whether an employer can be liable for employment discrimination if an employment action is taken by an unbiased supervisor who relies on the input of a biased supervisor without knowing of the bias. These so-called “cat’s paw” cases1 have been challenging because the decision-maker has acted without a discriminatory motive. In Staub v. Proctor Hospital, the United States Supreme Court held that the employer cannot avoid liability merely by showing that the ultimate decision-maker was unbiased if the ultimate decision-maker relied on input from a biased supervisor.
The Court’s Decision
The anti-discrimination legislation at issue in Staub was the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) which bars discrimination against members of the armed services. As with Title VII, which prohibits employment discrimination on the basis of race, color, religion, sex or national origin, a plaintiff must establish that his protected status (i.e., membership in the armed services) was a “motivating factor in the employer’s action.”
Staub presented an extreme twist on the familiar “cat’s paw” case. The following facts — all of which weigh strongly in favor of the employee — were undisputed: (1) two supervisors who were motivated by hostility toward Staub’s military obligations issued a written warning; (2) three months later one of these biased supervisors reported Staub’s violation of this same written warning; (3) the “pink slip” issued by the unbiased vice president of human resources only identified one reason for termination — Staub’s alleged violation of the biased supervisors’ written warning; and (4) the unbiased vice president of human resources’ “independent investigation” involved little more than a review of Staub’s personnel file. In addition, when the plaintiff claimed, in an internal grievance, that the supervisor had fabricated the reason for the discipline because of hostility towards the plaintiff’s military obligations, the vice president of human resources failed to investigate.
After considering this overwhelming evidence connecting the biased supervisors’ actions to the unbiased supervisor’s decision to terminate Staub’s employment, the Supreme Court easily found that the supervisor’s actions were a “motivating factor” in the vice president of human resources’ decision to terminate. The Court proceeded to reverse the Seventh Circuit’s reversal of the jury verdict in favor of Staub. More significantly, the Court refused to adopt a rule whereby an employer can immunize itself from liability by conducting an independent investigation when, despite investigation, the action of a biased supervisor remains the proximate cause of the adverse action taken.
Staub does not go so far as to hold that employers will be liable for discrimination whenever a biased supervisor takes action with respect to the employee. The Supreme Court observed that an employer can avoid liability where (1) an investigation results in adverse action for reasons unrelated to the supervisor’s original biased action, or (2) the employer determines that the adverse action is, apart from the supervisor’s recommendation, entirely justified. In less certain terms, the Court also suggested that employers may avoid liability where the connection between the biased supervisors’ action and the employment decision is more remote than it was in Staub.
Where Do We Go From Here?
Staub presents a teaching moment to remind employers that sound and consistently enforced human resources policies and procedures represent the best vehicle through which organizations can avoid litigation. The following are some important takeaways from Staub to mitigate litigation risk:
For more information on this alert, please contact any of the lawyers listed below:
John Adkins, firstname.lastname@example.org, 617.951.8551
Jenny Cooper, email@example.com, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group, firstname.lastname@example.org, 617.951.8340
1 The “cat’s paw” reference is derived from an Aesop fable where a monkey induces a cat to extract roasting chestnuts from a fire. After the cat burns his paw complying with the request, the monkey takes the chestnuts and leaves the cat with nothing. In what has become known as the “cat’s paw” employment discrimination case, the ultimate decision-maker represents the cat that takes the monkey’s (biased supervisor’s) word for it in making an employment decision on behalf of an organization.
This article was originally published by Bingham McCutchen LLP.