- Sexual Orientation Discrimination
- Is Extended Leave a Reasonable Accommodation?
- Parental Leave
- Pay Disparity
- Religious accomodation in the workplace
- Equal pay and prior salary information
- I quit! How to avoid constructive discharge
- You Can't Shred Email
- Navigating Unemployment Claims
- Considering Criminal History in Pre-Employment Decisions
- Defamation Claims from Former Employees
- Mixed Motive Causation
- Requesting Accomodation: Kowitz v. Trinity Health
- Antitrust Law in Human Resources
- An Evolving Standard: Joint-Employment
- What Does At-Will Employment Mean for Employers?
- Let's Talk About Wages
- THE FLSA: CHANGES ARE COMING
- Follow Up: Obesity and the ADA
- The Importance of Social Media Policies
- Is Obesity a Qualifying Disability under the ADA?
- Retaliation on the Rise: The EEOC Responds
- What Motivates You?
- "But I thought ...
- Who’s expecting? And what is he expecting?
- Are You Still Doing Annual Performance Reviews?
- Who is Your Employee?
- The unpaid intern trap Part II
- “We’ve been the victim of a cyber-attack”
- So, a Hasidic Jew, a nun in a habit and a woman wearing a headscarf walk into your office?
- The unpaid intern trap
- Pregnancy in the workplace
- Let's talk about honesty.
- "Did You Know" Series - Part I
- Conducting an Internal Investigation
- What HR can look forward to in 2015!
- The chokehold of workplace technology
- Does your company have trade secrets?
- North Dakota Construction Law Compendium for 2014
- Does the North Dakota baby boom affect you?
- Ban the Box? Why?
- The end of the world as we know it
- Everybody has an opinion
- Changes, Changes, Changes!
- Nick Grant presents at North Dakota Safety Council's 41st Annual Safety and Health Conference
- Email impairment: A potentially harmful condition
- Are Employers Required to Give Stressed-Out Employees Time Off?
- Can you obtain a credit report when investigating employee wrongdoing?
- Can’t we just sidestep the ACA?
- Should Your Employees Telecommute? Part III
- Should Your Employees Telecommute? Part II
- Should Your Employees Telecommute?
- Proper Investigation of Employee Misconduct
- Battles in the Wellness War
- Rules are rules! Aren’t they?
- What's going on in Bismarck
- A glimpse ahead
- Obesity as a disability under the ADA – reweighing the issue
- What’s next for your business under the Affordable Care Act?
- Criminal Background Checks
- Becoming a lawyer is a process, not an event [Section 5 of 5]
- Congress Says Yes To North Slope Energy Jobs Bill
- Test Your Knowledge of Social Media Policies and Employee Discipline
- Becoming a lawyer is a process, not an event [Section 4 of 5]
- What Every Employer Needs to Know About the NLRA
- Will the 2012 Elections Make A Difference
- Where There's Smoke...
- Dress Code Etiquette: Is Casual Friday Becoming Freaky Friday
- The Next Disaster May Be Yours
- Hostile Work Environment Claims
- North Dakota Employment Law Links
- There's An App For That
- Am I a “Business Associate”? Why Should I Care?
- Do You Recognize a Cat's Paw When You See One?
- Cell Phones Can Cost a Lot, Part II
- Becoming a lawyer is a process, not an event [Section 3 of 5]
- Cell Phones Can Cost a Lot, Part I
- The Economy - What HR Professionals Need To Know
- Becoming a lawyer is a process, not an event [Section 2 of 5]
- Three New Challenges For HR Professionals
Do You Recognize a Cat's Paw When You See One?By: Paul Ebeltoft
Just eight weeks ago, the United States Supreme Court held that an employer might be liable for an adverse employment action perpetrated by a “cat’s paw.” What does this mean?
The term “cat’s paw” comes from Aesop’s fable where a monkey flatters a cat into removing roasted chestnuts from a fire. The cat burns its paws and the monkey makes off with the chestnuts. In the work-world, a cat’s paw is a boss induced by a mean-spirited supervisor to discriminate unintentionally.
Here is the case: i Vincent Staub was an army reservist who worked for Proctor Hospital as a medical technician. Staub’s immediate supervisor was hostile toward Staub because of his military obligations, claiming that his service was “a bunch of smoking and joking and a waste of taxpayer’s money.” Staub’s immediate supervisor realized that she could not fire Staub merely because he took military leave.ii Instead, she issued a “corrective action plan” that required Staub to stay in his work area, even if he was not attending to a patient. Not surprisingly, within four months, Staub’s immediate supervisor found that Staub had left his desk in violation of the plan. She took the violation to Proctor Hospital’s Vice-president for Human Resources who, relying on the violation of a corrective action plan, fired Staub.
In this case, the Vice-president for Human Resources was the cat’s paw, acting for the devious “monkey”, the immediate supervisor. The immediate supervisor got rid of Staub. The Vice President and her company got burned.
After exhausting his employer’s grievance processes, Staub brought a lawsuit that sought to hold Proctor Hospital liable for discrimination. Staub claimed that his immediate supervisor’s assertion that he breached the corrective action plan was false. Even though the decision maker, the Vice-president, did not have discriminatory intent and fired Staub for a non-discriminatory reason, Staub claimed that anti-military bias formed a motivating factor for the action plan and the subsequent report of a breach to the Vice-president. The Court agreed. Rejecting a narrower interpretation that Staub’s immediate supervisor’s discriminatory intent had to be the “singular influence” in order to hold the employer liable, the Supreme Court said that finding the supervisor’s discriminatory intent to be “a factor” was sufficient.
WHAT DOES THIS MEAN TO YOU?
The Staub decision means that an employer might be liable for discriminatory intent of a supervisor even if the supervisor does not make the adverse employment decision and even if the employment decision had other, permissible factors influencing it. The ruling makes it easier for plaintiffs to succeed in an employment case claiming discrimination. The Court reserved ruling on whether a non-supervisory fellow-employee could also set the stage for a cat’s paw claim by taking some action, motivated by discriminatory intent, that results in an otherwise neutral supervisor taking an adverse employment action with respect to a co-worker. Expanding the cat’s paw theory of recovery in this way will exponentially increase its use in workplace litigation.
WHAT’S TO BE DONE?
It is unclear whether the result in Staub would have been the same if Staub had failed to utilize internal grievance procedures. Make sure that you have a fair internal grievance procedure. Publicize it to your employees. If they fail to use it, there might be a defense.
Listen to your employees, even the ones being fired or disciplined. If there is a charge that a supervisor (or even co-worker) was “out to get me fired”, do not discount it as a paranoid rant. Investigate any such claim. Document what you did and document the results.
If possible, make a termination or disciplinary decision on recurrent recalcitrant conduct. If you must act on a single event, try to obtain documented reports from sources in addition to the complaint of an immediate or upstream supervisor. In other words, take into account all of the facts available to you, not merely the report of a supervisor who may be trying to make you a cat’s paw.
i Staub v. Proctor Hospital, 131 S.Ct. 1186
ii Uniformed Services Employment and Reemployment Rights Act of 1994.
Reprinted with permission from an article submitted for publication in the May 2011 Southwest Area Human Resource Association newsletter.