Posted on March 1, 2011 at 2:18 pm by Lyle Denniston
It has taken the Supreme Court a few years to get to the bottom of the issue, but on Tuesday it made up its mind: the “cat’s paw” theory that lays the blame on the employer for workplace discrimination that occurs along the chain of job decisions is a valid one, under at least some of the federal laws against workplace bias.Â The split decision in Staub v. Proctor Hospital (09-400) applies directly to the federal law making it illegal to discriminate against a worker because that employee has had to take time off to serve in the active or reserve military, but the wording of that law is closely similar to provisions in other anti-bias laws.
The outcome of the case drew unanimous support among the Justices (except that Justice Elena Kagan did not take part), but the reasoning used in a majority opinion written by Justice Antonin Scalia was not supported by two of the Justices — Samuel A. Alito, Jr., and Clarence Thomas.
The “cat’s paw” theory gets its name from the fable of a 17th Century French poet, about a monkey who persuaded a cat to pull chestnuts out of the fire, so the cat gets burned and the monkey makes off with the chestnuts.Â In its simplest form, in the workplace context, the employer gets the legal blame even if the actual executive or supervisor who fires or demotes a worker of refuses promtion does not act out of a biased intent, but the bias of another executive or supervisor along the way worked its way into the final decision.Â Â The final decision-maker is, so to speak, the cat and the biased associate is the monkey.
The law specifically at issue in this case, the Uniformed Services Employment and Reemployment Rights Act, forbids discrimination against an employee because of that worker’s performance of military duties, if the military service is “a motivating factor” in the firing or other adverse action taken.Â That language, Justice Scalia noted, is very similar to wording in Title VII, the most far-reaching federal law against workplace bias.Â But similar language exists in a host of other federal workplace laws.
As finally crafted by the Scalia opinion, the “cat’s law” theory of liability falls upon the employer only if these steps play out in a sequence: (1) a supervisor of the worker takes a step (writing up a negative report, for example) that is done for a biased reason, (2) that supervisor intends to get the worker fired, demoted or otherwise penalized, and (3) the supervisor’s step is found to be the “proximate” cause of the ultimate decision — even if the executive or supervisor who actually carries out the firing or other penalty is someone else, and that person was not at all biased.
The opinion pointed out in a footnote, however, that the Court was only dealing with a situation where the biased intent was harbored by a supervisor.Â “We express no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.”
While the Court’s ruling appeared to have positive promise for the worker who complained of bias, the decision did not finally decide whether he is entitled to the $57,640 in damages that a jury had awarded him (but was overturned by an appeals court), or whether his employer was entitled to a new trial.Â The case was not tried along the specific lines of the sequence Scalia fashioned, so the next step in the case must await further review in the Seventh Circuit Court.
The worker involved was Vincent E. Staub of Peoria, Ill., who held a job as a technician at Proctor Hospital, who was fired after prolonged disputes with his supervisors, who objected to his absences for Army Reserve duty.Â He contended that his supervisors created special work rules just for him, as part of a campaign to get rid of him, and they wrote a report saying he had violated the rules (which he denied).Â Staub argued that their anti-military bias thus was a motivating factor in an unbiased supervisor’s final decision to fire him.
Along the way toward embracing its version of the “cat’s paw” theory, the Court majority rejected the hospital’s argument that, since the supervisor who made the final decision actually did her own investigation before acting, that should neutralize the effect of the other supervisors’ bias and get the hospital off the hook.Â If the biased supervisors’ intent fit into the scenario laid out by the Scalia opinion, the Court said, an investigation by the final decision-maker would not remove liability.
Justices Alito and Thomas agreed that the Seventh Circuit decision overturned by Tuesday’s decision was wrong, but they argued that the Court should have allowed for a removal of liability if the decision-maker conducted her own investigation before carrying out the firing.