Hunton Employment & Labor Perspectives

Earlier this month, the U.S. Supreme Court ruled that the “cat’s paw” theory of employment discrimination -- that an employer can be liable for the discriminatory animus of an employee who influences, but does not make, an ultimate employment decision -- applies to claims brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the law that protects individuals called to military service during their private employment.  In a unanimous decision, 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.”

Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011).

While the holding of the case is unambiguous, the Court left unanswered a number of important related questions, including whether an employer can insulate an adverse employment decision from prior discriminatory animus and whether any affirmative defense exists to the cat’s paw theory. The facts of the case, however, may provide a useful lesson to employers seeking to avoid being scratched by the cat’s paw.

Staub was employed by Proctor Hospital as a angiography technician. He also was a member of the U.S. Army Reserve, which required him to attend one weekend drill per month and to train full-time for a two to three week period each year. Staub’s first and second line supervisors were found at trial to be hostile to his military obligations. Collectively, they scheduled Staub for additional shifts without notice so that he could “pay back” his department for “everyone else having to bend over backwards” to cover his service; told a co-worker that he was a “strain” on the department and asked her to help “get rid of him;” made disparaging comments about his service; and issued him a biased “corrective action” and then recommended that he be terminated for violating the corrective action.

The vice president of human resources, who ultimately terminated Staub’s employment, relied in part on the accusation from Staub’s supervisor that he had violated the corrective action in reaching her decision. She also reviewed the remainder of Staub’s file, which revealed complaints about his performance from other supervisors and co-workers. Staub challenged his discharge under the company’s internal grievance procedure and accused his supervisors of anti-military bias and of fabricating the claims underlying his corrective action. Critically, the vice president of human resources did not follow up on Staub’s claims of bias against his supervisors, and adhered to her earlier decision.

There was no evidence that the human resources executive harbored any anti-military bias towards Staub. However, her failure to follow up on Staub’s claim that his supervisors were discriminating against him was enough to create liability under the cat’s paw theory. Simply, she failed to take any action to sever the causal link between the discriminatory acts of the non-decision makers -- the biased corrective action and tainted recommendation that Staub be terminated -- and the company’s ultimate decision to terminate. Under a cat’s paw theory of liability, that inaction proved fatal to Proctor’s defense.

Staub serves as a stark reminder to employers that employee allegations of illegal bias in their treatment by managers and supervisors should be independently investigated, regardless when and at what point in the discipline process the allegations are raised. Certainly, a senior human resources employee generally should be able to rely on the judgment and recommendation of lower level managers when considering whether to take disciplinary action against an employee. That said, an employer acts at its own peril by doing so in the face of claims of bias against the supervisor who is recommending the disciplinary action. By independently investigating Staub’s claim of anti-military bias, Proctor’s vice president of human resources might have verified the accuracy of his claims and rescinded the discipline, or determined that Staub’s termination was independently justified by the portion of his disciplinary file that was not tainted by the biased corrective action. Either way, she would have created a record that was much better suited to withstanding a cat’s paw discrimination challenge.