The risk of employer liability for being tricked into taking an adverse employment action against an employee by a supervisor with discriminatory motives, i.e. cat’s paw liability, is real. On the heels of the U.S. Supreme Court’s March, 2011 decision in Staub v. Proctor Hospital, a number of lower courts have taken up the issue and found a basis for cat’s paw liability pursuant to various statutes. Additionally, since many states’ courts simply follow federal law when interpreting state civil rights laws, the cat’s paw legal theory is likely to find its way to purely state law cases as well as administrative agency investigations. This expansion of cat’s paw liability risk may require an expansion of HR compliance.
In Staub, 131 S.Ct. 1186 (March 1, 2011), the plaintiff sued the Hospital under the United Services Employment and Reemployment Rights Act (“USERRA”) alleging that the Hospital’s Vice President of Human Resources who fired him from his civilian job as a hospital angiography technician was merely a “cat’s paw” for his direct supervisors, who openly expressed their contempt for his U.S. Army Reserve training requirements, which strained scheduling and other work within the department. The Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under the USERRA.” While the Staub Court addressed a claim under the USERRA, other courts have now addressed the issue in other legal contexts.
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