Nonetheless, Staub argued that his lower-level supervisors discriminatory actions were “a motivating factor” in his termination, because the Human Resources Director based her decision on the supervisors’ recommendation. Rather, she was the unknowing “cat’s paw” of the discriminatory supervisors. Staub acknowledged that the person who made the termination decision, the Director of Human Resources, had no discriminatory animus.
He further alleged that their actions, including trumped up disciplinary warnings for violations of non-existing policies, influenced the ultimate decision to terminate his employment. Staub claimed two of his supervisors openly discriminated against him because of his military status and activities. Under - USERRA, an employer may be liable for unlawful discrimination if “the person’s membership is a motivating factor in the employer’s action.” Staub sued Proctor for violation of the Uniformed Services Employment and Reemployment Rights Act (– USERRA). Staub was an Army reservist, whom Proctor Hospital employed until it discharged him in 2004. So, if the employer did even a minimal amount of review before approving the lower manager’s recommendation, it could escape liability for the lower manager’s unlawful motive. The manager (cat) is unaware of the peril and ends up approving a decision that was tainted by discrimination.īefore Staub, employers successfully argued that they could not be liable unless the actions of the discriminatory lower-level manager were the “sole influence” for the employer’s adverse action. Thus, under the cat’s paw theory, a lower-level supervisor (monkey) asks the upper level manager (cat) to approve a decision (chestnuts). The monkey then took the chestnuts, leaving the cat with nothing except for a burned paw. The monkey convinced the cat to reach into a fire and pull out roasting chestnuts. The term “cat’s paw” comes from a 1990 court decision in which the court analogized to a fable involving a monkey and a cat. In a cat’s paw scenario, a plaintiff alleges that someone else, acting with a discriminatory motive, influenced the decision but was not ultimately responsible for the adverse action taken against the plaintiff. We also provide some practical steps employers can follow to minimize their potential liability.Īs discussed above, a plaintiff claiming unlawful discrimination or retaliation must show that the person making the decision was motivated, at least in part, by bias against plaintiff’s engaging in “protected activity” (retaliation) or protected characteristics (e.g., race, religion, sex, etc). What is an employer to do? The following provides an overview the “cat’s paw” liability Staub affirmed. The Staub decision combined with the “motivating factor” liability standard may frustrate employers seeking to prevent liability for unlawful decisions. This standard means employers may be liable for discrimination even if there are good reasons for taking action and the discriminatory or retaliatory animus was just one of several motivating factors. The employer is liable for discrimination or retaliation if an unlawful bias was a motivating factor in an adverse action. This principle is known as “cat’s paw” liability, as explained below. In Staub, the Court explained that decisions tainted by discrimination cannot be cured by an innocent manager’s “blessing.” Whether or not the final decision maker knew of the unlawful bias, a tainted decision is attributed to the employer.
#CAT SWIPES HOW TO#
Some may merely “rubber stamp” a recommendation, whether because they are too busy, not trained how to review such recommendations, or because they place too much reliance on the assessment of those “on the ground.” Further, senior managers cannot always independently assess the facts that lead to a proposed decision. Even if detailed policies and procedures are in place, the more senior management generally relies on lower-level employees’ good faith and skill to report the relevant facts. Depending on the level of scrutiny, a second or third-level review can also ensure proper documentation identify “red flags” and assess potential risks.Īlthough an approval process is a good idea, it is not a vaccine against employment claims.
They also ensure consistent application of company policies. Senior managers, uninvolved in the day-to-day supervision of an employee, can lend a degree of objectivity. A review allows more responsible managers to detect ill-motivated decisions that could turn into legal claims.
Proctor Hospital, careful employers should consider requiring a review of lower-level managers’ and supervisors’ recommendations to terminate or take other actions against employees.
In light of a recent United States Court decision, Staub v.
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