Supreme Court Considers "Cat's Paw" Theory

The Supreme Court recently granted certiorari in Staub v. Proctor Hospital (09-400). It will hear and decide the case during its term opening in early October. The central question the Supreme Court will address is in what circumstances an employer may be held liable for unlawful discriminatory motives and actions by someone other than the decision maker. This theory of recovery is known as the “cat’s paw theory” and is taken from the 17th Century fable by French poet Jean de La Fontaine. In Fontaine’s fable, a shrewd monkey convinces a cat to steal chestnuts from a fire. While the cat burns her paw in the process, the monkey enjoys the fruits of the cat’s labor by eating all the chestnuts.

In employment law, “cat’s paw” typically arises under Title VII, the primary law related to workplace discrimination. In the Staub case, however, the theory arose under the Uniformed Services Employment and Reemployment Rights Act (USERRA). After an amicus brief by then Solicitor General Elena Kagan, and now, interestingly, a Supreme Court justice, the Court decided the Staub case is an ideal vehicle to address the lower courts’ inconsistent application of the law in “cat’s paw” cases.

Vincent Staub, a member of the Army Reserves, worked as an angiogram technician at Proctor Hospital in Peoria, Illinois. As a member of the Reserves, he attended required occasional weekend training in addition to two-week training during the summer. Staub’s supervisor, Janice Mulally, grew annoyed with Staub’s Reserve commitments. She frequently criticized the Reserves and intentionally scheduled him on weekends when he had training. In the weeks preceding his termination, Mulally disciplined Staub for “insubordinate behavior.” Considering Mulally’s dislike of Staub, the allegations were questionable. Despite this, the Vice President of Human Resources terminated Staub.

At the trial court, Staub asserted the decision maker adopted Mulally’s animus and, therefore, the decision would not have been made if not for Mulally’s discriminatory animus. The jury returned a verdict favoring Staub and awarded him $57,640. On appeal, the Seventh Circuit reversed and remanded the decision and held the “cat’s paw” theory only attributes the discriminatory animus of the non-decision maker to the decision maker when the non-decision maker is the only influence on the decision-maker. The Seventh Circuit ruled that evidence of “singular influence” of the non-decision maker and “blind reliance” by the decision-maker is necessary in “cat’s paw” cases. The Seventh Circuit found clear evidence showed while Mulally did influence the decision-maker, the decision-maker also relied on other information including Staub’s reputation for being a difficult employee and his history of discipline prior to Mulally’s supervision. Furthermore, the Seventh Circuit found the trial court erred in allowing the case to proceed to trial because the trial court should have determined whether the non-decision maker was the singular influence on the decision maker before determining whether the non-decision maker held discriminatory animus. Staub’s attorney contested this decision on the basis that it fails to hold employers accountable when several factors lead to the adverse employment action, including discriminatory opinions from those the decision-maker consults before making the ultimate decision.

The Seventh Circuit essentially articulated a very narrow interpretation of the “cat’s paw” theory by requiring singular influence by the non-decision maker. We do not know how the Supreme Court will decide the case but some speculate that, given its ideological composition, the Supreme Court likely will affirm the Seventh Circuit opinion. Check back here for regular updates.

Sue the Bully?

What does a workplace bully look like? It may be a boss who screams at subordinates, one who writes false evaluations for good employees in order to put their jobs at risk, or one who sets impossible standards.

Recent studies indicate that bullying in the workplace is on the rise. Zogby International’s 2007 study found that 37% of workers had been bullied at some time throughout their career. Furthermore, a recent University of Phoenix study asserts that the recession is to blame: so-called serial bullies have more justification for bullying, and normal managers now have the sense that they need to extract as much output from as few employees as possible – leading to more instances of workplace bullying. Just days ago, the New York Times reported that The Virginia Quarterly Review has suspended publication for a period following the suicide of its Managing Editor. According to press reports, the Managing Editor’s family claims he had been repeatedly bullied by the top editor of the magazine.

While legal protections exist under existing laws for workers who suffer abuse due to their membership in a protected class (race, ethnicity, sex, age, religious persuasion), ordinary workers who undergo malicious treatment from their superiors have no recourse.

Sixteen states are now considering laws to change this. The New York State Senate passed legislation in May, entitled The Healthy Workplace Bill, which would enable workers to sue for physical, psychological, or economic harm due to abusive treatment at work. The New York state assembly will consider the bill next year and, if the bill passes, employees demonstrating they faced a hostile environment due to a workplace bully could win lost wages, medical expenses, compensation for emotional distress, and punitive damages. In order to recover, the employee must prove that the bullying was done with malice and usually that it occurred repeatedly. Companies who investigate in a timely manner and take measures to correct the problem will have access to affirmative defenses.

This legislation no doubt will add a higher regulatory burden and increase (perhaps dramatically) the number of employment lawsuits. We want to know what you think about this. Do you think this kind of legislation is helpful or problematic? Let us know with your comments below.

Coles Corner Winning Wine: August 2010 (Archive)

Pali Pinot Noir Riviera (Sonoma Coast) 2008 - This smooth wine carries a distinct dark fruit flavor and finishes nicely on the palate. It is light enough to be a summer red yet substantial enough to pair with meat and poultry.