In Staub v. Proctor Hospital Inc., 2011 WL 691244 (U.S. 2011), the U.S. Supreme Court ruled that an employer can be held liable under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), which forbids discrimination based upon a person's military service, when an unbiased decision maker relies upon the reports of a biased supervisor to make an employment decision.
Staub was an employee of Proctor Hospital when he was called to duty as a member of the Army Reserves. Staub's two immediate supervisors were critical of his military obligations, one of whom issued him a disciplinary warning for having left his work area and directed him to obtain permission before leaving in the future. Later, the other supervisor informed the hospital's Vice President of Human Resources that Staub had again left his work area without permission. Straub claimed that both accusations were false, but the Vice President, relying on the latest accusation and her review of Staub's personnel file, which included the prior incident, decided to terminate him.
Staub sued, asserting a claim under USERRA. At trial, Staub convinced the jury that, although the decision maker (the VP of HR) was unbiased, she improperly relied upon reports from Staub's biased supervisors. Staub used the so-called cat's paw theory, which holds that an employer can be held liable for the animus of a supervisor who did not make the ultimate employment decision.1
The Seventh Circuit reversed the jury verdict, holding that discriminatory bias can be attributed to a decision maker only where the biased non-decision maker had a “singular influence” over the decision maker. The Seventh Circuit ruled that, although the biased supervisors clearly influenced the decision maker in this case, there was evidence that the decision maker also considered other unfavorable aspects of Staub’s employment unrelated to the biased supervisors' reports.
The Supreme Court reversed, holding 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,” The Court also observed, “it is axiomatic under tort law that the exercise of judgment by the decision maker does not prevent the earlier agent's action from being the proximate cause of the harm.” Therefore,
if the employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action … then the employer will not be liable. But the supervisor's biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the superior's recommendation, entirely justified.
Importantly, in adopting the proximate cause standard for a cat's paw bias claim under USERRA, the Supreme Court noted that USERRA is “very similar to Title VII” in that discrimination is established under both when the person's protected class is “a motivating factor” for the adverse employment decision. Employees undoubtedly will cite this statement in support of an allegation that the cat's paw proximate cause standard applies equally to Title VII claims.
Although the full impact of the Staub decision remains to be seen, it appears that a decision maker may be required to conduct a thorough and independent investigation to avoid being tainted by the actual or alleged animus of other supervisors.
1 The term "cat's paw" is based on an old fable in which a monkey uses flattery to convince a cat to extract roasting chestnuts from a fire, leaving the cat with a burned paw and the monkey with the chestnuts.