The United States Supreme Court has issued a much anticipated decision involving "cat’s paw" liability in Staub v. Proctor Hospital [pdf].  Cat’s paws may bring up images of cuddly kittens, and indeed the name for the legal theory comes from one of Aesop’s Fables, however, the legal theory actually makes it easier for employees to prove discrimination claims.  Current case law generally provides a defense to an employer when a supervisor may have made a discriminatory statement or acted with discriminatory intent, but the ultimate decision-maker was a different person. and was unaware of the discriminatory animus.  Under a cat’s paw theory, an employee could still prove discrimination if it could be demonstrated that the unbiased decision-maker relied on information from the biased supervisor.

The Staub case was not a discrimination case brought under Title VII or any state anti-discrimination laws.  Rather, it was a case brought under USERRA, which protects individuals returning from military service and prohibits discrimination against them.  However, the decision will likely have much broader effects as the Court noted the similarities between the anti-discrimination provisions in USERRA and those in Title VII.  Specifically, the Court highlighted the fact that under both statutes, in order to prove discrimination, the employee must demonstrate that a discriminating factor was a "motivating factor" in the adverse employment action.  Thus, this decision could be applied to both retaliation and discrimination claims under Title VII, the Americans with Disabilities Act, etc.

In trying to decide what is a motivating factor, the Court recognized that it might not be fair to say that discrimination was a motivating factor where the decision-maker relied on a report that was motivated by discrimination where the decision-maker had no idea that was the case.  The Court was unwilling to totally eliminate a cat’s paw theory, however, and said that where the biased supervisor intended to cause the adverse employment action, then that might be a "motivating factor" even when the decision-maker was unaware of the bias or the intent.  So, practically speaking, when do the discriminatory actions of a non-decision maker actually become a motivating factor?   When the discriminatory report of the non-decision maker is simply accepted at face value and is the reason for the adverse employment action.

According to this decision, one way to avoid cat’s paw liability then is for the employer to make an independent investigation into the reasons for the employee’s termination and not to simply rely on what is being reported by the supervisor.  This may be easier said than done for some employers who lack large infrastructures or human resource departments to conduct this review or who have many remote locations where the immediate supervisor may be the only person who can comment on an employee’s performance.  Some things that employers should consider before acting on a supervisor’s recommendation to terminate an employee are as follows:

• How have other employees who committed the same infractions been treated?
• Has the employee recently engaged in protected activity — taken leave, requested an accommodation, reported discrimination?
• Is there documentation to back up the supervisor’s criticisms?
• Is there some alternative to firing such as written warnings and performance plans that should be considered first?