Consider the following situation: An employee works for a hospital, during which time he is also a member of the United States Army Reserve. The employee’s immediate supervisor and the supervisor’s supervisor are hostile to his military obligations. The immediate supervisor issues the employee a disciplinary warning for allegedly violating a company rule. The supervisor’s supervisor accuses the employee of violating the disciplinary warning. The hospital’s human resources vice president, who has no problem at all with the employee’s military obligations, relies on the accusation of the supervisor’s supervisor and fires the employee. The employee sues the hospital for employment discrimination under the United Services Employment and Reemployment Rights Act of 1984 (USERRA) based on the hostility displayed toward the employee’s military obligations by both the supervisor and the supervisor’s supervisor.
These were the facts before the U.S. Supreme Court in the recent case of Staub v. Proctor Hosp., 131 S. Ct. 1186 (U.S. 2011). The issue in Staub was whether the employer-hospital could be held liable for employment discrimination based on the discriminatory animus of the supervisor and the supervisor’s supervisor who influenced, but did not make, the ultimate employment decision to fire the employee. This case — i.e., one in which an employee seeks to hold his/her employer liable for the discriminatory animus of a supervisor who was not charged with making the ultimate discriminatory employment decision — is often referred to as a “cat’s paw” case. The term “cat’s paw” derives from the Aesop fable in which a monkey induces a cat by flattery to extract roasting chestnuts from a fire. After the cat has done so, burning its paws in the process, the monkey runs off with the chestnuts and leaves the cat with nothing. As the Supreme Court noted in the Staub decision, “[a] coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king’s behalf and receive no reward.”
In considering this issue, the Supreme Court examined the language of the USERRA statute, which provides in relevant part that “[a]n employer shall be considered to have engaged in actions prohibited…if the person’s membership [in the Uniformed Services] is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.” 38 U.S.C. § 4311(a) (emphasis added). Based on this language, as well as general principles of tort and agency law, 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.”
The Staub case emphasizes the importance of effective anti-discrimination training, as well as the necessity of having the ultimate decision-maker conduct an independent investigation before making an employment decision. While the Staub case involved claims of employment discrimination under USERRA, the Supreme Court’s holding is likely to apply to other anti-discrimination laws that contain similar “motivating factor” language, the most prominent being Title VII of the Civil Rights Act of 1964 (prohibiting employment discrimination on the basis of race, color, religion, sex or national origin).