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.
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.
In Staub v. Proctor Hospital, the Supreme Court ruled that the decision-maker was used by Staub’s immediate supervisors to an end — the termination of Staub.
Brooks Eason, an employment attorney and shareholder in the Jackson office of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, said the “cat’s paw” theory had percolated through the lower courts in the past, but had been routinely struck down by higher courts. Staub v. Proctor Hospital was the first time the U.S. Supreme Court had ever ruled in a case evoking the “cat’s paw” theory of liability.
“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,” Eason said.
As example, Eason said a common defense in racial discrimination cases has been ignorance. If the defendant could take the stand and testify that he or she did not know the plaintiff’s race, courts would hold that as a valid defense and rule for the defense.
Now, ignorance is not a defense. If the decision-maker took action using other’s input, and those other parties were discriminating against the plaintiff due to race, the decision-maker is liable as if he or she had perpetrated the racial discriminatory actions.
“The decision creates a significant difficulty for human resources professionals,” said Eason. “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.”
One Mississippi academician, who asked to not be identified, said he did not see Staub v. Proctor Hospital changing human resource management curricula. Rather, it merely emphasizes the need for human resources managers to make sure their actions stay within the bounds of employment law.
“Any HR who were not documenting their actions and were not ensuring that they were staying within the law before this ruling were headed for trouble,” the source said. “This ruling just drives home the point that documentation and knowing the law are essential to keeping companies out of court.”
The academician said the ruling is just another obstacle for companies and their HR departments, costing them time and money. He laments the opportunity cost.
“If an employer is spending time and money making sure they are not violating employment law in firing an employee, that is resources that could be used for positive things, such as hiring,” the source said.
The source wondered if the fact that military service was involved swayed the justices. He said the U.S. has a volunteer army, which is engaged in conflicts overseas. The fact that Staub claimed military service discrimination might have “rung with the justices.”
Eason thinks not. He said he thought the justices would find racial, gender or other discriminatory practices equally as reprehensible — and unlawful. And he pointed out that the decision was written by Justice Scalia, who is a conservative.
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.
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