De-Clawing the "Cat's Paw" Method of Proving Discrimination

Key Issues for HR Professionals

By: Greg Grobe

On March 1, 2011, the United States Supreme Court unanimously recognized the "Cat's Paw" method of proving discrimination.   The term "Cat's Paw" originated in one of Aesop's fables, where a monkey induced a cat to perform a dangerous deed for it.  In 1990, Judge Richard Posner (7th Circuit Court of Appeals in Chicago) applied the phrase to a new theory of liability.  Under the "Cat's Paw" theory, it does not matter if the decision maker lacks a discriminatory motive when making an employment decision.  An employee may still succeed on a discrimination claim if there is proof that a non-decision maker, such as a front line supervisor, had a discriminatory bias and influenced the final decision maker, either directly or indirectly.  The controversial theory, which is now the law of the land, significantly enhances potential liability for discrimination and requires Human Resource professionals to adopt new procedures to protect against this exposure.   

Facts of the Case

The case, Staub v. Proctor Hospital, highlights the elements of the Cat's Paw theory and identifies the steps that employers will now need to take to avoid liability.  Vincent Staub was an angiography technician employed by Proctor Hospital in Peoria, Illinois.  Mr. Staub also served in the Army Reserves and was required to attend one weekend drill per month and annually attend Reserves training lasting two to three weeks.  Mr. Staub's absences were protected by the federal Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"). 

During Mr. Staub's absences, other employees were required to fill his shifts.  Over time, Mr. Staub's supervisors began to express frustrations with his continuous absences and the adverse impact they caused on other employees.  One of the supervisors assigned extra shifts to Mr. Staub as "pay-back" for "everyone else having to bend over backwards" to cover his absences.  Another supervisor quipped that the weekend drills were a "bunch of smoking and joking" and a "waste of taxpayers' money."  It is not clear whether either supervisor had ever attended training in federal discrimination laws or whether either were aware of the USERRA rules.
 

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