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May 05, 2011

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.
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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.