Supreme Court "Cat's Paw" Case

The Lentz Law Firm, LLC                                          

Chuck Lentz, Employment Law

April 26, 2010





State and federal law make a discriminatory or retaliatory motive behind an employment decision illegal.  Decisions made with an illegal motivation leave an employer liable for damages and attorney fees. 


In those instances where the decision maker is an upper level manager who is entirely well intentioned and does not have any motive other than to make a legitimate business decision consistent with company policy and practice, it would seem that discrimination is not an issue and that the employer need not be concerned about liability.  But, what if the objective, non-discriminatory upper level manager concludes that company policy was violated, and that a discharge or other punishment is appropriate, on the basis of information provided by lower level managers or supervisors who can be shown to have illegal, discriminatory motivation?  Is the employer still liable, or does the honest, non-discriminatory intention of the ultimate decision maker eliminate any liability?


The U.S. Supreme Court will now, for the first time, hear a case raising that issue (Staub v. Proctor Hospital; on appeal from the 7th Circuit Court of Appeals).   The question the Supreme Court will address is:  In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?


Various Courts of Appeal have decided this issue – often referred to as the “cat’s paw” theory – differently over the years.  Some courts have found that the employer is liable if the evidence shows that the tainted, discriminatory information “caused” the employment decision.  Other courts, like the 7th Circuit Court of Appeals in the decision to be reviewed by the Supreme Court, have held that the decision of the non-discriminatory, “detached” manager will create liability for the organization only when the tainted, discriminatory information has a “singular influence” on the decision maker who acts with “blind reliance” on that information.  In the case on appeal, the decision maker was unaware of the animosity towards the person being fired that stemmed from his military service (the case was brought under the federal statute protecting service members from retaliation for taking time off for military duties). This, the 7th Circuit held, was enough to shield the organization from a claim of illegal discrimination as a matter of law. 


This issue has been brought to the Supreme Court on a number of occasions over the years but has not yet been ruled on there.  If this most recent case does not get settled or otherwise resolved first, the decision of the Supreme Court is expected to have considerable impact on how employment decision making processes must work. 


Until the Supreme Court issues its decision in the Staub case, though, I recommend that all employers take care to protect the integrity of all employment decisions having an adverse impact on employees by making sure that the ultimate decision maker(s) conduct some sort of independent review of the facts of the case before them.  This should include gathering information from as many sources as practicable and not relying just on the word of one or two supervisors.  It would also be wise to examine closely any information provided by the immediate supervisors to make sure that it, at the very least, passes the “smell test”.  Any decision maker who does not take care to ensure the integrity of their decision in this way, runs the risk of getting blind-sided by a Charge of Discrimination if it turns out that illegal bias tainted the information under consideration in connection with the employment action.


If you would like to discuss this issue in more depth, or if I could be of assistance to you with any questions you may have about how the law may impact your workplace, please do not hesitate to get in touch.   

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