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To HR professionals: Beware of 'cat's paw' liability

By Wally Northway

A decision recently rendered by the U.S. Supreme Court opens employers to liability for discriminatory employment practices in a theory that up until the ruling had gained little traction in the higher courts.

Now, human resources managers need to be aware that the “cat’s paw” liability theory has been deemed constitutional and holds broad implications for employment practices moving forward.

Earlier this month, the Supreme Court ruled unanimously in Staub v. Proctor Hospital that the hospital was guilty of discriminatory employment practices against Staub. The hospital had taken prior disciplinary action against Staub for what it deemed poor work performance. However, Staub maintained that his immediate supervisors discriminated against him because of his military service commitment, in violation of The Uniformed Services Employment and Reemployment Rights Act of 1994, and were angling to have him terminated, which eventually he was.

The decision-maker in his termination was not one of his immediate supervisors, but the hospital’s vice president of human resources. The decision-maker maintained that she decided to terminate Staub because of poor performance and not because of his military service.

However, the Supreme Court ruled it found evidence that the decision-maker’s actions were motivated by Staub’s immediate supervisors, whose bias to his military service was unlawful. Thus, the decision-maker’s action was also unlawful.

This is commonly referred to as the “cat’s paw” theory of liability. The term was coined from the 17th-century fable “The Monkey and The Cat” written by French poet Jean de La Fontaine. In the fable, the unscrupulous monkey dupes the cat into raking some chestnuts out of a fire. The monkey promptly eats the chestnuts, leaving the cat with nothing but burnt paws.

Thus, “cat’s paw” refers to one party using another to accomplish his or her purposes.

Brooks Eason, an employment attorney and shareholder in the Jackson office of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, said, “This decision will have broad implications for many types of employment cases because the Supreme Court interpreted the phrase ‘motivating factor,’ which is a common element of discrimination and retaliation claims. (It) creates a significant difficulty for human resources professionals. The only way an employer can insulate itself from the ‘cat’s paw’ theory of liability is for the decision-maker to rely entirely on information obtained from employees who have no discriminatory motive. Ensuring that this is the case will be difficult, especially in disciplinary cases. The HR professional’s only protection is to attempt to uncover any undisclosed motives by confirming the supervisor’s information through as many sources as possible.”

Eason said HR people need to be educated on the “cat’s paw” theory. Indeed, the Mississippi Business Journal contacted numerous HR professionals across the state, and not one of them was familiar with the theory or the recent ruling by the Supreme Court.

About Wally Northway

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