Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of race, gender, religion or national origin. An employee establishes unlawful discrimination when he or she establishes that race, gender, religion or national origin was a motivating factor in the employment decision. Other statutes prohibiting discrimination on the basis of specified statutory criteria include the Age Discrimination in Employment Act (“ADEA”), Americans with Disabilities Act (“ADA”), and the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).
A common question arising in these and other statutes establishing illegal criteria for employment decisions is whether an unlawful factor motivated the employment decision. Typically, this requires the employee to demonstrate that the decision- maker was influenced by unlawful animus. In other words, if a non-decision making supervisor possessed animus toward an employee but such animus did not motivate the decision-maker, the animus would not be imputed to the decision-maker.
In 1990, a theory developed in employment law called “cat’s paw.” In a cat’s paw case, the employee attempts to hold the employer liable for the animus of a supervisor who was not the ultimate decision-maker. Courts that recognized this cat’s paw theory generally required the employee to demonstrate that the decision-maker’s decision to terminate was a product of “blind reliance” on the information provided by the supervisor who possessed the animus toward the employee.
On March 1, 2011, the Supreme Court of the United States addressed the concept of a cat’s paw case in a claim brought under the USERRA, alleging discrimination against an employee because of that employee’s membership in the United States Army Reserve, something expressly forbidden under USERRA. In Staub v. Proctor Hosp., 131 S.Ct. 1186 (2011), the employee was able to demonstrate at trial that his immediate supervisors possessed unlawful animus towards him, arising from his military service. As a result of this animus, the supervisor issued the employee a false disciplinary warning. The supervisor followed this false disciplinary warning with a false report to the vice-president of human resources that the employee had violated his corrective action notice.
The vice-president of human resources relied upon the supervisor’s accusations in making the decision to terminate the employee. No independent investigation was undertaken to confirm the supervisor’s accusation even after the employee filed a grievance claiming the supervisor had fabricated the accusation.
The employee subsequently brought a claim of discrimination. The employee did not claim that the decision-maker possessed any unlawful animus towards him but rather that the supervisor’s animus influenced the ultimate employment decision.
The Supreme Court held that the fact that the decision-maker lacked animus in the decision making process does not end the inquiry. The court expressly held that the issue arising under the USERRA was a “federal tort,” and introduced tort concepts into its analysis by stating “when Congress creates a federal tort it adopts the background of general tort law.” The Court reasoned that the supervisor’s actions could be the “proximate cause”—a tort concept--of the employment decision when the supervisor intends, for discriminatory reasons, that the adverse employment action occur. Otherwise, an employer could avoid liability simply by isolating the decision-making process from the biased supervisor even though the ultimate decision was “based upon discriminatory animus that was intended, and did in fact cause, an adverse employment decision.” Thus, a supervisor’s biased report may be a motivating factor in the employment decision if the decision is based, in part, upon such biased report.
An employer can assist itself by independently investigating the propriety of the employment decision, but the court expressly declined “to adopt such a hard-and-fast rule” insulating an employer from liability merely because it conducts an independent investigation. Rather, once a plaintiff establishes that there is discrimination by the non-decision makers, it becomes the burden of the employer to demonstrate that the adverse employment action occurred “for reasons unrelated to the supervisor’s original biased action.” Thus, if such investigation provides the employer sufficient reasons to terminate the employer that bear no relationship to the supervisor’s bias, the employer can defeat the claim, despite the discrimination of the non-decision maker. . Otherwise, the discriminatory conduct of the non-decision maker can serve as the proximate cause of an adverse employment decision, leading to employer liability.
The practical aspects of this decision are troubling, since it means that a decision maker cannot completely trust in the judgment of underlying supervisors, at least not without risking liability. Nor does the decision speak to whether certain indicia must present itself before invoking the obligation of the decision maker to investigate an employment decision that has already ostensibly been delegated in large part to others. While it is certainly possible that courts might graft such requirements into the analysis, the practical effect is to require an employer to conduct an investigation into such a claim by an employee, even if the claim is raised after the employee has been terminated. If the investigation reveals that the discipline was not the result of animus or if there were other reasons justifying the discipline separate and distinct from the animus, the discipline would not be considered unlawful discrimination. On the other hand, if the investigation reveals that the discipline was the result of unlawful bias, the employer must immediately rescind the discipline to avoid potential liability. The employer must also take further action to ensure that any discriminatory conduct ceases.
While Staub was decided under the USERRA, it seems likely that its analysis will be imported wholesale into other discrimination claims, such as claims arising under Title VII, ADEA, ADA, and other federal and state anti-discrimination statutes. Circumspect counsel suggests that it be considered in any situation where a decision maker is relying upon the reports or recommendations of others.
If you would like a copy of the full opinion or if you have any other questions regarding Employment Practices Liability, feel free to contact one of our practice area attorneys.