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Supreme Court Applies “Cat’s Paw” Rule: Employer is Liable In Case Where Supervisor Discriminated, Even Though Decision-Maker May Have Acted Without Bias
The “Cat’s Paw” rule is an important component of employment discrimination litigation. Under that theory, if a supervisor actively discriminates against an employee, but convinces a decision maker “up the line” to terminate the employee for non-discriminatory reasons, there may still be liability on the employer’s part, even though the actual decision maker acted without an improper motive.
A simple set of facts illustrates the point. Suppose a supervisor wants to fire an employee because of the employee’s religious beliefs, but writes up the employee so a decision maker up the line thinks the employee has been underperforming. A decision is made to terminate the employee – not because of religion, but because the decision maker thinks the employee is not doing his job right.
Even though the decision maker seemed to have acted innocently, the supervisor improperly infected the process with his bias – in effect using the ultimate decision maker as a cat’s paw to carry out impermissible discrimination. This rule was announced in California in the case of Reeves v. Safeway Stores, Inc., 121 Cal.App.4th 95 (2004) (“If a supervisor makes another his tool for carrying out a discriminatory action, the original actor's purpose will be imputed to the tool, or through the tool to their common employer.”) The “cat’s paw” reference apparently refers to one of Aesop’s Fables, involving a monkey who tricked a cat into carrying out his will to secure chestnuts from a roasting fire (see Reeves, 121 Cal.App.4th at 115 & n. 14).
The United States Supreme Court applied this type of analysis to uphold a claim that a military hospital improperly discriminated, even though the decision makes seemed to act innocently. The case is Staub v. Proctor Hospital. The opinion was written by Justice Antonin Scalia, the court’s most conservative member. The governing statute was the Uniformed Services Employment and Reemployment Rights Act (USERRA, 38 USC § 4311). The statute prohibits discrimination against individuals because of their military status; the issue in many cases is whether anti-military bias was a “motivating factor” in connection with the challenged employment decision.
The court noted:
“When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee’s membership in or obligation to a uniformed service, a motivating factor obviously exists. The problem we confront arises when that official has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else.”
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Since a supervisor is an agent of the employer, when he causes an adverse employment action the employer causes it; and when discrimination is a motivating factor in his doing so, it is a “motivating factor in the employer’s action,” precisely as the text requires.
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We therefore hold 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.”
Although the Staub case arose under the USERRA, it is expected that the same analysis will apply in Title VII cases; indeed, the court expressly noted in Staub that Title VII was “very similar” to USERRA with respect to employment discrimination issues.
For your convenience, a copy of this ruling is attached.
We regularly advise employers, unions, and individual employees about issues such as this that arise in the workplace. Feel free to give us a call if you have questions or issues in this area.