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By Ben Mathis and Jonathan Kandel
The U.S. Supreme Court has issued a decision that could leave employers liable for discrimination even if the ultimate decisionmaker has no discriminatory animus. The Court held that an employer can be liable based on the discriminatory animus of an employee who influences, but does not make, the ultimate employment decision.
The Court’s decision endorses the “cat’s paw” theory of discrimination, which is used to hold an employer liable for the animus of a supervisor who is not charged with making the ultimate decision. The theory is named after a 17th century fable in which a monkey convinces a cat to take chestnuts out of a fire and then makes off with the chestnuts, leaving the cat with nothing but burnt paws.
In Staub v. Proctor Hospital, an army reservist sued his employer under the Uniform Services Employment and Reemployment Rights Act (USERRA), claiming that his discharge was motivated by hostility to his military status. USERRA prohibits employers from discriminating against a member of the uniformed services on the basis of the membership or an obligation thereof. 38 U.S.C. § 4311. Under USERRA, discrimination occurs when the membership in, or an obligation to, a uniformed service “is a motivating factor” for an adverse employment action.
While the case only involved USERRA, the Court noted that USERRA’s “motivating factor” language is very similar to Title VII’s and many other anti-discrimination statutes.
Evidence in the Staub case demonstrated that the plaintiff’s immediate supervisor and the supervisor’s supervisor were hostile to the plaintiff’s military status and wanted him terminated. The plaintiff’s supervisor issued a written warning when the plaintiff supposedly violated a work rule. The warning directed the plaintiff to stay in his work area unless he had permission from his supervisor or the supervisor’s supervisor.
A few weeks later, the supervisor’s supervisor informed the vice president of human resources that the plaintiff violated the warning’s directive. After reviewing the plaintiff’s personnel file, including the written warning, the vice president fired the plaintiff for ignoring his supervisor’s directive in the warning.
The plaintiff challenged his termination through his employer’s grievance process, claiming the written warning was false and motivated by his military status. Without looking into the plaintiff’s claim of discrimination, the vice president denied the plaintiff’s grievance.
The Court found that the employer could be liable because the supervisors committed discriminatory acts (issuing the written warning and accusing the plaintiff of violating the warning) that were “intended” to cause, and did in fact cause, the plaintiff’s termination. In so holding, the Supreme Court rejected the employer’s contention that it could not be liable because the ultimate decisionmaker (the vice president) was not motivated by anti-military animus.
The Court explained that, while the vice president was not motivated by the plaintiff’s military status, the vice president relied upon the supervisor’s discriminatory conduct in deciding to terminate the plaintiff.
Significantly, the Court refused to adopt a bright-line “independent review” defense. This defense often has been used by employers to insulate discipline decisions approved by higher level managers where employees claim immediate supervisors were biased. Previously, employers could avoid liability by showing that the higher-level manager conducted an “independent review” of the issue and, therefore, the lower-level manager’s alleged discriminatory animus was immaterial.
The Staub decision seemingly rejects the “independent review” defense. The Court, however, did leave employers with some ability to avoid liability where they can establish that a decisionmaker’s investigation resulted in the discharge for reasons unrelated to the supervisor’s original biased action. The Court explained that such a showing could be made if the decisionmaker determines (separate and apart from the supervisor’s recommendation) that the supervisor’s action was “entirely justified.”
The Staub decision again emphasizes the importance of employers enacting comprehensive complaint procedures for all forms of discrimination (not just harassment) as well as internal grievance procedures. While the Supreme Court did not provide employers guidance for conducting an adequate “independent investigation,” these procedures likely will enhance an employer’s ability to contend that decisions were thoroughly investigated (not just “reviewed”), and a decision rendered without relying upon a particular supervisor’s view of a situation. Similarly, the Staub decision highlights the need for exit interviews. By conducting such post-employment interviews, employers can ascertain whether an employee believes discrimination was involved and investigate any claims. Investigating the facts (not just the personnel file) will increase the likelihood of prevailing against a “cat’s paw” discrimination claim.
For more information, contact Ben Mathis at 770.818.1402 or [email protected] or Jonathan Kandel at 770.818.1427 or [email protected] of the Labor & Employment Law Practice Group.