Just how many of your front line supervisors (who do not have authority to hire and fire anyone) are making comments and issuing biased disciplinary actions to set you up for a "cat's paw" case? Probably more than you think. A cat's paw discrimination case is one in which the actual decision maker is unbiased but a biased lower level supervisor's recommendation or influence taints the ultimate employment decision. The courts have not been uniform in their approach to this issue—some holding employers responsible if the biased supervisor exerted some degree of influence and others finding that a decision maker's independent review of a biased recommendation will protect against liability. In March the U.S. Supreme Court released its long-awaited (at least in employment lawyer circles) decision in Staub v. Proctor Hospital finding that cat's paw liability is alive and well, and that an independent review is not an absolute bar to liability.
Facts and the Seventh Circuit's Decision
Vincent Staub was an angiography technician for Proctor Hospital, as well as a member of the U.S. Army Reserve. According to Staub (and apparently the jury that awarded him nearly $60,000 in damages), his supervisors, Janice Mulally and her boss, Michael Korenchuk, were hostile to his military obligations. Evidence of their hostility included scheduling Staub for additional shifts without notice so he could "pay back the department" for covering for him during his military duty. Mulally reportedly told another employee that Staub's military duty was a strain on the department and asked for help to get rid of him. Not to be outdone, Korenchuk reportedly belittled Staub's reserve duties, calling them "a bunch of smoking and joking" and a waste of taxpayer money.
In January 2004, Mulally disciplined Staub for leaving his work area in violation of a policy. The result of the corrective action was that Staub was to report to Mulally or Korenchuk whenever he had no patients. Not surprisingly, Staub argued even if the policy existed, which he disputed, he did not violate it. It does not appear that he took his argument to human resources; he saved it for his subsequent lawsuit.
A few months later, in April 2004, another employee complained to Linda Buck, the VP of Human Resources, about Staub's "frequent unavailability and abruptness." Buck directed Mulally and Korenchuk to address Staub's availability problems. While they were coming up with a plan, Korenchuk reported to Buck that Staub had left his desk without reporting to a supervisor, which violated the January corrective action. Buck, who had no anti-military bias, reviewed Staub's personnel file (and found the January write up) and, relying on Korenchuk's version of events (which Staub disputes), terminated Staub. In the termination notice, Buck specifically mentioned Staub's violation of the January directions. Staub grieved the decision, for the first time raising his supervisors' anti-military animus, but Buck did not change it.
After a jury awarded damages to Staub and Proctor Hospital appealed, the Seventh Circuit Court of Appeals reversed the jury verdict, finding that Proctor Hospital was entitled to judgment as a matter of law. It noted that the decision maker, Buck, had no anti-military bias. In deciding to terminate Staub, Buck relied on her review of Staub's personnel file and the employee's complaint about Staub's unavailability and abruptness; not simply on Mulally and Korenchuk's recommendations. Under Seventh Circuit precedent, Staub's cat's paw case could not succeed unless Mulally and Korenchuk exercised such "singular influence" over Buck that her decision to terminate Staub was the product of "blind reliance." Accordingly, because Buck's decision was not wholly dependent on Mulally and Korenchuk's advice, the Seventh Circuit reversed the decision.
The Supreme Court's Decision
The Supreme Court reversed the Seventh Circuit and revived Staub's case. The Court began its analysis with the underlying statute, the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA prohibits discrimination based on a person's membership in the uniformed service. 38 U.S.C. § 4311(a). An employer violates USERRA if an employee's membership in the uniformed services is a "motivating factor" in any decision, unless the employer can prove that it would have taken the same action absent the military status. 38 U.S.C. § 4311(c). The Court noted that while Staub's military service was not a motivating factor in Buck's decision, Mulally and Korenchuk, who arguably had anti-military animus, influenced her decision. The Court ultimately held "that 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, then the employer is liable under USERRA." Given that the allegedly biased supervisors, Mulally and Korenchuk, took actions that ultimately led to Staub's firing, the biased decisions were a causal factor in Buck's decision. Despite Proctor Hospital's argument that an unbiased decision maker's independent review should insulate the employer, the Court would not go so far.
Avoiding the Cat's Paw
Most companies already have non-discrimination policies, supervisor training, and effective complaint procedures. What else should you consider to prevent this kind of cat's paw liability? First, think about who is making your ultimate decisions. Giving front line supervisors broad authority may empower them and be good in some respects but it will increase your exposure to these kinds of claims. In the Staub case, the front line supervisors were not decision makers. If they had been, Staub would simply have argued that the decision makers were biased (and he had evidence to prove it). Separating the front line supervisors from the decision forced Staub to make the cat's paw argument, which is certainly harder to prove. Second, have your decision makers do some independent review of supervisor recommendations. Again, in the Staub case Buck performed some independent review. Although the courts suggested Buck's review may not have been particularly robust, it was not a rubber stamp but still not enough to protect the hospital. Thus, it would seem the more thorough the upper level review, the better chance of showing that the tainted information was not a proximate cause of the decision. Finally, impress upon supervisors the importance of following the law, even when it is inconvenient. Laws like USERRA, FMLA, or ADA that present real burdens on schedules and coworkers are most likely to result in unfortunate supervisor comments or recommendations. Make sure supervisors are not creating evidence impossible to overcome.
The Court's decision suggests that its analysis applies to more than just USERRA cases so expect plaintiffs' lawyers and courts to be looking for cat's paws under every stone. Keep in mind that even under a cat's paw theory of liability, the plaintiff has to establish that the biased supervisor's action was a proximate cause of the employment decision. Careful decision making can go a long way to undermine that causal connection.
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