EMPLOYER ALERT – “CAT’S PAW” THEORY OF DISCRIMINTION CAN TAINT IMPARTIAL FIRING DECISION

The phrase ‘garbage in, garbage out’ doesn’t just apply to the computer business, where it’s long been recognized that if you input faulty data into a computer program, it will process that information and yield a predictably faulty result. Likewise, an impartial decision-maker can still subject your company to liability for violation of one of the federal employment discrimination laws if their hiring or firing decision was based on “facts” or “opinions” that were tainted by another employee’s discriminatory intent.

A March 2011 decision of the U.S. Supreme Court, Staub v. Proctor Hospital, describes this as the “cat’s paw” theory of discrimination, and in the nine months since that decision was rendered it has been relied upon by federal courts throughout the country in allowing discrimination clams to move forward even though the actual decision-maker was admittedly unbiased. In a nutshell, the “cat’s paw” theory allows a plaintiff to prove his or her case by demonstrating that the otherwise impartial decision was tainted by discriminatory animus on the part of the plaintiff’s supervisor. The name is derived from a fable in which a monkey persuades a cat to reach into the fire to retrieve chestnuts. The cat burns its paws, and the money makes off with the chestnuts, unscathed.

In Staub, a case arising under USERRA (the federal law that protects members of the armed forces from discrimination in employment based on their military service), a supervisor fabricated a disciplinary action, based on the supervisor’s animosity toward the military obligations of the employee, who was a member of the U.S. Army Reserve. The employee’s file was later reviewed by an HR manager, who made the decision to terminate the employee without researching the underlying merits of the disciplinary action. The employee, Straub, filed a grievance about the dismissal, claiming that his boss had fabricated the disciplinary action because he was angry that Straub’s military reservist obligations interfered with scheduling in the department. The HR manager, however, failed to investigate that allegation, and refused to reconsider the termination of employment. A jury found in favor of Straub, but the case was reversed on appeal due to the lack of any intentional discrimination by the HR manager who made the firing decision. Straub then appealed to the Supreme Court, and won.

The Supreme Court held that the HR manager’s lack of intent to discriminate – and lack of knowledge that the underlying disciplinary action was contrived – did not insulate the company from liability for wrongful termination in violation of USERRA.

The decision is Straub is not limited to USERRA cases. Rather, the “cat’s paw” approach it articulates has been used uniformly by federal courts in all types of employment discrimination cases.

The best approach for an employer is not to make a hasty termination decision. If you are the decision maker and you don’t have personal knowledge of the alleged misconduct by the employee, you should investigate the facts before making the decision to terminate. Make sure your disciplinary forms provide a space for employee comments on any write-up, and that there is an internal reporting procedure for employees to follow if they believe they are the victims of discrimination.