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Twist on bias headed for Supreme Court? Cat’s paw theory claws back

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in Firing,HR Management,Human Resources

by David B. Ritter and Sonya Rosenberg, Esqs.

After taking a back seat to other employment issues on the U.S. Supreme Court’s agenda, the “cat’s paw” theory of liability may well be coming back into the spotlight, and employers better be ready.

The term “cat’s paw” refers to situations in which an immediate supervisor discriminatorily influences the ultimate decision-maker to discipline or terminate an employee under seemingly legitimate pretenses.

Depending on the facts of a given cat’s paw case, the ultimate decision-maker, who is always unaware of the intermediary manager’s discriminatory motive, may either rubberstamp the termination recommendation or agree to termination after conducting his or her own evaluation of the facts.

Federal appeals courts differ

In holding an employer liable for unlawful discrimination, federal courts of appeal are split on the appropriate level of control exerted by the biased supervisor over the ultimate decision-maker.

The 7th and 4th Circuits take the most stringent approach, holding that no liability can be imputed unless the biased supervisor singularly motivates the ultimate decision, while the ultimate decision-maker “blindly relies” on the supervisor’s recommendation.

The 6th, 9th, 10th and 11th Circuits take an intermediate approach, requiring plaintiffs to show that the biased supervisor “caused” the ultimate decision-maker’s action. That can be established by showing that the biased supervisor provided adverse, incomplete or fabricated information about the plaintiff to the ultimate decision-maker in order to carry out a discriminatory agenda.

The 1st, 2nd, 3rd, 5th, 8th and D.C. Circuits take the most liberal approach, allowing plaintiffs to proceed in cat’s paw claims as long as they can show that the biased supervisor “influenced” or “played a role” in the decision-making process.

Supreme Court steps in

The U.S. Supreme Court may finally get to decide a cat’s paw case after twice missing the opportunity when the parties to previous cases decided to settle their cases rather than wait for the court’s decision.

On Nov. 9, 2009, the Supreme Court asked the U.S. Solicitor General to submit the government’s views on whether the Supreme Court should hear an appeal in Staub v. Proctor Hospital (560 F.3d 647, 7th Cir., 2009).

Staub involves an Army Reserve member who was terminated by Linda Buck, HR director for Proctor Hospital in Peoria. Vincent E. Staub alleged that his firing was influenced by two managers who were biased against him because of his military status. The jury agreed, awarding Staub $57,640.

The hospital appealed, arguing that Buck was indisputably unaware of any discriminatory animus against Staub. It said she had decided to terminate him based on her own, independent investigation of his performance.

The 7th Circuit agreed that Buck independently decided to fire Staub and that, consequently, no liability for alleged discrimination could be imposed on the hospital.

Is Staub a good vehicle or not?

Petitioning for the Supreme Court to hear the case, Staub’s attorney argued that the 7th Circuit’s decision presents the “ideal vehicle” for addressing the lingering circuit split on the cat’s paw issue, as Buck’s decision-making was influenced by the discriminatory predispositions of Staub’s immediate supervisors.

Proctor Hospital countered that Staub itself is actually a poor vehicle for resolving the admitted circuit split. The hospital’s counsel argued that there was no cat’s paw issue to decide because Buck’s independent investigation and decision to terminate Staub broke any “casual link” between the biased supervisors and the ultimate decision-maker.

What employers should do

Whether or not Staub reaches the Supreme Court, the case should be a wake-up call for employers: Cat’s paw cases are out there and they can lead to protracted, costly litigation. Here are some ways to ensure your employment actions don’t turn into cat’s paw lawsuits:

  • Make sure ultimate decision-makers don’t simply rubberstamp the recommendations of intermediate supervisors.
  • To the extent possible, the ultimate decision-maker should independently investigate the incident or behavior that could lead to discipline. The goal: to verify that a legitimate offense occurred, and that intermediate managers aren’t pursuing discipline because of bias.
  • Train supervisors and employees on your nondiscrimination policies and reporting procedures.

These basic, prudent steps can go a long way toward preventing or minimizing liability, not just in cat’s paw claims, but also in many other employment disputes.

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