Over the fifty years of equal employment opportunity law jurisprudence, many obviously-named legal theories have emerged, including the Continuing Violations Doctrine, the Avoidable Consequences Doctrine, and the Joint-Employer Doctrine. This lack of judicial creativity was addressed in the 2011 decision in Staub v. Proctor Hospital, and the U.S. Supreme Court’s application of a children’s fable to the fantastically-named legal theory of recovery, the Cat’s Paw Doctrine.
The Staub case examined an employer’s liability for an unbiased, otherwise uninvolved decision-maker’s “rubber-stamping” of a biased, lower-level supervisor’s discriminatory action. Although the Staub case focused on the Uniformed Services Employment and Reemployment Rights Act (USERRA), it had broad implications for interpretation of Title VII.
The “Cat’s Paw” fantasy — actually derived from an Aesop fable — revolves around a clever monkey convincing an impressionable cat to use its claws to pull chestnuts from a roaring fire. While the cat ends up getting burned, the monkey opportunistically feasts on the fruits of another’s efforts. It is a Machiavellian tale of the purportedly weak or incapable antagonist duping a powerful but unsuspecting ally into unknowingly assisting with its evil plans.
Army reserve member Vincent Staub argued he was a “cat’s paw” discrimination victim. A member of the Army Reserve, Staub was required to attend occasional weekend training as well as a two-week summer exercise. In unpatriotic fashion, his direct supervisor (playing the role of the wily “monkey”), Janice Mulally, resented these absences, allegedly demonstrating her animus by making several disparaging remarks and going out of her way to adjust his work assignments to ensure weekend scheduling conflicts. Staub was eventually disciplined by Mulally for purportedly insubordinate behavior.
The cat in this sad tale was the Vice President of Human Resources. With Mulally’s presumed good faith, credible reporting of facts as the catalyst, the V.P. initiated an investigation and eventually ordered Staub’s termination of employment after a repeat of the previously-reported insubordinate behavior.
The parties to the Staub litigation agreed that the decision-maker had no unlawful animus. Staub claimed, however, that but for Mulally’s unlawful animus toward his military service (a clear violation of USERRA), he would not have been fired. The jury agreed, but the Seventh Circuit Court of Appeals reversed. In reviewing the “cat’s paw” theory of liability, it held that the discriminatory animus of the non-decisionmaker can only be attributed to the decisionmaker – and thus to the employer through respondeat superior liability – where the former had “singular influence” over the higher level, unsuspecting, executive actor. The Seventh Circuit then concluded that while the decisionmaker was clearly influenced by Mulally, there was no evidence of “blind reliance,” and that the decision-maker looked at Staub’s job performance independent of Mulally’s report of Staub’s alleged behaviors.
The U.S. Supreme Court reversed the Seventh Circuit on the simple, practical theory of “proximate cause.” It held that Mulally’s earlier acts of discrimination set in motion a chain of events that led to Staub being on the radar of the head of human resources. Effectively rejecting the “blind reliance” requirement, the Court found that the independent review of the facts by the ultimate terminating authority did not automatically negate the initiating discrimination by the lower-level supervisor.
This is a very practical decision, looking at the modern workplace and the realities of delegated responsibility, and the all too frequent “rubber stamp” review. In a surprising development for that particular Supreme Court, the justices climbed down from their ivory towers, and looked at the interdependence associated with an increasingly attenuated corporate decision-making process. But the Staub decision goes further than most cautionary tales, as it exposes employers to liability for actions of subordinate employees, in some instances regardless of any internal checks and independent, good faith protocols instituted by a sophisticated final decision-maker. To that extent, it is a frustrating and frightening tale, with the moral of this fable reminding employers that they are only as safe from liability as their front-line supervisors are free of unlawful bias.