In a much-anticipated decision, Staub v. Proctor Hospital , 113 S. Ct. 1186 (Mar. 1, 2011), the United States Supreme Court, established the standard for determining liability in "cat's paw" employment discrimination cases. The term "cat's paw" derives from a 17th-century fable in which a cat is duped by a monkey to steal chestnuts from a fire (whereby the innocent cat burns its paws, and the wily monkey makes off with the chestnuts). In the employment setting, the term refers to situations in which an innocent, unbiased decision maker (the cat) is influenced into taking an adverse employment action by a biased, self-serving supervisor (the monkey).
Staub held that for an employer to be liable for an adverse employment action in such situations, (1) the biased supervisor must have performed an act (e.g., given an unsatisfactory performance review or reported an employee for a policy violation) that was motivated by illicit animus and was intended by the supervisor to cause the ultimate adverse employment action (e.g., employment termination or non-promotion), and (2) the biased supervisor's act, in fact , must have been a proximate cause of the ultimate adverse employment action.
Although the case arose under the Uniformed Services Employment and Reemployment Rights Act (USERRA), which prohibits discrimination based on an individual's membership in a uniformed service, the Staub Court expressly noted that Title VII and USERRA have similar textual provisions, providing for liability when unlawful animus is a "motivating factor" in an adverse employment action, and the new Staub standard is likely to apply well beyond USERRA cases.
Facts And Procedural History
Staub involved a discriminatory discharge claim brought by plaintiff Vincent Staub, who was a member of the U.S. Army Reserve while employed at Proctor Hospital. The events leading to Staub's discharge began when his direct supervisor (Mulalley) placed him on a corrective action plan for violating a hospital workplace rule (which Staub maintained did not exist and, in any event, denied violating). Subsequently, Mulalley's supervisor (Korenchuk) reported to the hospital's human resources vice president (Buck) that Staub had violated the terms of the action plan (which Staub also denied). Relying on Korenchuk's report, Buck reviewed Staub's personnel file and decided to terminate his employment. The termination notice provided that Staub had violated his corrective action plan.
Staub grieved his termination under the hospital's complaint mechanism, contending that Mulalley had been hostile to his military obligations and had fabricated the events giving rise to the corrective action plan. Buck did not confront Mulalley about Staub's complaint, however, and, after discussing the matter with another HR official, stood by her original termination decision.
At the trial on Staub's discriminatory discharge claim, there was no allegation that Buck (the sole decision maker) harbored any antimilitary animus; rather, Staub claimed that the discriminatory actions of Mulalley and Korenchuk influenced Buck's decision, such that the hospital should be held liable for that decision. Mulalley had referred to Staub's military obligations as "a strain on the department" and asked one of Staub's coworkers to help her "get rid of him." Korenchuk referred to Staub's obligations in pejorative terms and said it was nothing more than "a bunch of smoking and joking and a waste of taxpayers' money."There was also evidence that Korenchuk was aware of Mulalley's desire to "get rid of" Staub.
The jury returned a verdict for Staub, finding that his military status was a motivating factor in the hospital's discharge decision. On appeal, the U.S. Court of Appeals for the Seventh Circuit reversed, setting aside the jury verdict and awarding judgment as a matter of law to the hospital. In doing so, it held that a cat's paw claim, such as that alleged by Staub, was not sustainable unless a biased supervisor/non-decision maker exercised "singular influence" over the actual decision maker such that the discharge decision had been the result of "blind reliance" on the biased supervisor. The Seventh Circuit concluded that there was insufficient evidence on which a reasonable jury could have found for plaintiff under this standard, given that Buck had not only relied on Mulalley and Korenchuk's reports, but also had reviewed Staub's personnel file and consulted with another HR officer before confirming her discharge decision.
The Supreme Court's Rejection Of The Seventh Circuit Standards
The Supreme Court reversed and established a new standard for assessing an employer's liability in cat's paw cases. The Court explained that under USERRA, an employer is liable for an adverse employment decision if an employee's military service is a "motivating factor" in that decision. The Court reasoned that where the plaintiff does not accuse the actual decision maker of bias, but challenges the motives of a supervisor who did not make the decision, the employer is liable if
a supervisor performs an act motivated by antimilitary 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.
Applying this standard, the Court concluded that there was sufficient proof that Staub's supervisors intended for their actions to result in his discharge and that their actions were in fact a proximate cause of that discharge.
The Court also rejected the hospital's argument that a decision maker's purportedly independent investigation (and rejection) of an employee's claim that a supervisor's animus motivated his or her actions should absolve the employer of liability. The Court "decline[d] to adopt such a hard-and-fast rule." It explained that in some cases, an independent investigation may result in a finding that a supervisor's biased actions were not a "causal factor" in the adverse employment action. In other cases, however, the Court reasoned, the biased actions could be a "causal factor" notwithstanding the investigation (such as in the case before it).
Implications Of Staub For Employers
Although Staub will undoubtedly lead plaintiffs to assert claims under the cat's paw theory, the decision is not a boon for all employees.
First , Staub does not universally relax the burden of proof for employees in cat's paw cases.
• In some jurisdictions, such as the Seventh and Fourth Circuits, where a rigid "blind reliance" or "rubber stamp" rule had been applied, cat's paw plaintiffs will now face a lower hurdle to establish employer liability.
• In many other jurisdictions, however, where cat's paw plaintiffs were required to show only that a biased non-decision maker played a "meaningful role in" or "had influence in" a challenged employment decision, such as in the Second and Third Circuits, the reverse may be true; in these jurisdictions, Staub may well posit a higher hurdle for plaintiffs and a greater potential for defenses by employers.
Second , the outcome in Staub is limited by the particular facts of the case.
• There was direct evidence in Staub that two supervisors harbored extreme antimilitary bias, and that one even had a goal to "get rid of" Staub because of such bias. Such employee-favorable evidence is not typically present in the majority of discrimination cases, most of which are premised on circumstantial evidence.
• The Court also expressly limited its decision to cases involving biased supervisors' actions, which proximately cause adverse employment decisions; the Court expressed "no view as to whether the employer would be liable if a coworker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.
• Due to the procedural posture of the case, the Court was constrained to consider all of the evidence in a light highly favorable to plaintiff; the evidence tending to substantiate the hospital's decision to discharge Staub (which should be evaluated by a court in the summary judgment context) did not even make it into the Supreme Court's discussion.
• Further, the Staub decision was clearly influenced by the less-than-robust investigation undertaken by the hospital's HR executive who received Staub's internal discrimination complaint.
Finally , the Staub decision serves as a reminder for employers to regularly review and update their procedures
• for communicating policies and practices to employees;
• for governing discipline and its documentation; and
• for training human resources professionals so that they are sensitized to potential cat's paw situations.
Amanda Dealy Haverstick is Special Employment Law Counsel resident in Proskauer's Newark, NJ office, and Fredric Leffler is a Partner in the Labor & Employment Law Department, resident in the New York office.