Supreme Court May Hear 'Cat's Paw' Case

Tresa Baldas 11-30-2009
Employment lawyers are hoping the U.S. Supreme Court will resolve a conflict in the federal circuits over the so-called cat's paw theory. That says an employer is liable for discrimination when a final decision-maker is influenced by a lower-level employee with discriminatory motives to take an adverse action against another worker.
On Nov. 9, the Supreme Court asked the solicitor general for the government's views on the case of Staub v. Proctor Hospital, which raises the cat's paw theory. The Court is considering whether to hear the case.
Vincent Staub, a member of the Army Reserve, alleges that he was fired from his hospital technician job in Illinois because of the influence of a supervisor who was anti-military. Staub claims that the nonbiased, ultimate decision-maker was influenced by the supervisor. A jury awarded him $57,640, but the 7th U.S. Circuit Court of Appeals reversed the verdict in March.
The federal circuit courts remain split on the concept of holding an employer liable for unlawful discrimination by someone other than the primary decision-maker. The 1st, 3rd, 5th and 9th circuits have all upheld a cat's paw claim where the terminated employee could prove that a biased worker actually influenced the final decision. At the other end of the spectrum, the 4th Circuit has held that if the final decision-maker's motive is pure, an employer cannot be held liable for a subordinate's alleged bias. And the 10th Circuit requires evidence that the biased subordinate caused the firing or demotion through his discriminatory recommendations, reports or actions.
"There is a clear split among the circuits ... and, ultimately, that's what the Supreme Court is there for. It really shouldn't be that you have a different application of federal law because you're in Ohio or you're in California," said Robert Niccolini, a partner in the Washington office of Ogletree, Deakins, Nash, Smoak & Stewart, who has successfully defended several cat's paw cases on behalf of employers.
For employers' sake, Niccolini hopes that the Supreme Court rules against Staub. "If the final decision-maker does have a clear motive, a legitimate, nondiscriminatory motivation or reason for a decision, then that really should be the end of the analysis as a matter of law," Niccolini said.
But if that were the rule, federal discrimination laws "would be a dead letter for most employers," countered Eric Schnapper, a professor at the University of Washington School of Law who is representing Staub and filed the writ of certiorari at the Supreme Court. He said that at most companies, several individuals are involved in making employment decisions and, too often, the biased opinions and inaccurate information of some are passed along to the final decision-maker.
Employers, he stressed, should not be shielded from liability when someone within the company commits a wrongdoing against another. That, Schnapper said, is what's going on within the 4th and 7th circuits. "The problem is that employers within these circuits simply aren't liable for discrimination because they're not being held legally responsible for the people that work for them," he said.
Hopefully, that will change, said Schnapper, who has three times petitioned the Supreme Court to take up the cat's paw theory. "The court is clearly going to take this at some time," he said. "There's a split in the circuits, and the issue comes up a lot."