Time & Attendance
By George Wood
May. 20, 2011
Earlier this year, the U.S. Supreme Court ruled that a hospital worker could sue his former employer for the animosity of supervisors who did not make the ultimate decision to fire him.
The decision struck down a narrow version of the so-called cat’s paw theory of employer liability. But its practical effects for employers are unclear.
Vincent Staub brought his indirect discrimination case under the Uniformed Services Employment and Reemployment Rights Act, or USERRA, claiming his firing by Proctor Hospital of Peoria, Illinois, was motivated by hostility to his obligations as a military reservist.
Two supervisors, Janice Mulally and Michael Korenchuk, had made negative comments about his duties, with Korenchuk referring to them as “a b[u]nch of smoking and joking and [a] waste of taxpayers[‘] money.” In deciding to terminate him, the vice president of human resources reviewed Staub’s personnel file, which included a disciplinary warning issued a few months earlier by Mulally.
The cat’s paw theory, which gets its name from a 17th-century fable, allows liability against an employer even if the actual supervisor who disciplines a worker does not act out of bias but the disciplinary decision was influenced by the bias of another supervisor.
A jury awarded Staub $57,640 in damages, but the 7th U.S. Circuit Court of Appeals in Chicago reversed it, holding that cat’s paw liability does not apply unless the nondecision-maker exercised “singular influence” over the decision-maker such that the decision to terminate was the product of “blind reliance” on the nondecision-maker’s views.
The Supreme Court said the “singular influence” test was too restrictive in light of USERRA, which states that an employer may be held liable for discrimination if a person’s membership in the military is a “motivating factor” in the employer’s action.
“So long as the earlier agent intended, for discriminatory reasons, that the adverse action occur, he has the [mental state] required for USERRA liability,” Justice Antonin Scalia wrote for the court.
Scalia also rejected a “hard-and-fast rule” that would allow a decision-maker to conduct an independent investigation to negate the effect of the nondecision-maker’s discriminatory views.
The decision is clear in its analysis. But it does not address how the cat’s paw theory should be applied under other discrimination statutes such as Title VII. And it also does not give employers any practical guidance as to how a decision-maker should appropriately use prior discipline of an employee that was imposed by a nondecision-maker.
In such instances, HR managers would be wise to determine whether there was any animosity between the employee and the prior supervisor. Practically, this may be accomplished by asking the employee general questions about the prior discipline to determine the employee’s reaction to it.
A negative reaction may be used to probe further into whether the prior supervisor made any improper comments. Employers may also question the prior supervisor regarding the relationship (although the supervisor may not be candid).
HR managers also should focus on poor working relationships between a supervisor and a subordinate. Knowledge of a poor relationship permits the employer to examine the reasons why and determine whether a change the reporting relationship is necessary to avoid future cat’s paw issues.
Finally, despite the Supreme Court’s reservations, an independent examination of prior discipline by a different supervisor may, in many instances, be the most practical approach an employer can take. Examining the factual basis for the prior discipline is likely to weed out discipline that is questionable and permit the employer to have a more solid basis for the ultimate disciplinary decision.
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