Supreme Court & “Cat’s Paw” Liability
When Congress passed Title VII of the Civil Rights Act of 1964—which prohibits employment discrimination based on race, color, gender, national origin, and religion—it provided the courts almost no guidance on how to interpret the relatively brief statute, which simply makes it unlawful "to discriminate against any individual with respect to his [sic] compensation, terms, conditions, or privileges of employment." The courts have spent the last 40 years deciding what it means to "discriminate" against employees.
The Supreme Court is about to undertake that task again, this time resolving a scenario that is common to all modern corporate and governmental decision making: when multiple decision makers terminate an employee, when is the employer guilty of discrimination if only one person in the chain of command (but not the ultimate decision maker) harbors discriminatory views?
Although Title VII is one of the few civil rights laws that affect nearly every adult American, as well as their employers, the Supreme Court's rulings in this area rarely generate widespread attention. That is, unless the Court wades into the thicket of affirmative action or racial disparities in hiring, as shown by the controversy in 2009 over the New Haven firefighters who successfully argued that the city could not throw out a promotions examination that produced disparate test results along racial lines.
The Pendulum Is Swinging
For a few years in the 1990s and 2000s, the Court issued surprisingly progressive rulings that expanded the scope of Title VII. This happened after the Court, in 1989, issued a series of pro-employer decisions, prompting Congress and the first President Bush to amend Title VII in order to undo them. Those rulings, among other things, made it more difficult for employees to challenge management policies that disparately impact racial minorities. Seemingly chastened by the Civil Rights Act of 1991, the Supreme Court over the next decade or so expanded the rights of retaliation victims by ruling that general laws against employment discrimination necessarily implied that management could not retaliate against workers for objecting to biased treatment. The Court also rejected the contrary rulings of many lower courts by deciding that the employee can win at trial simply by showing that the employer's "reason" for her termination was false and offered in bad faith and that no additional evidence of discrimination was required.
The pendulum is now swinging back toward management. President Bush's appointment of two conservatives to the Supreme Court since 2005 (the justices are split between five conservatives and four liberals) produced two controversial rulings that once again reflected managerial prerogatives. In 2006, the Supreme Court ruled that a woman who for years was paid less than male employees waited too long to challenge the discriminatory pay practices. This prompted Congress to pass the Lilly Ledbetter Fair Pay Act of 2009, under which the statute of limitations starts anew with each discriminatory paycheck.
On November 2, 2010, the Court heard oral argument in a case that has the potential to close the courthouse door to any number of discrimination plaintiffs. In Staub v. Proctor Hospital, the plaintiff claimed he was terminated because of his military obligations in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). One of the supervisors who gave Staub a bad write-up harbored obvious hostility toward Staub's military commitments, describing them as "bullshit" and also hanging up on Staub's Reserve Unit Administrator after calling him an "asshole." Another supervisor, who signed off on the bad write-up, had in a different context referred to drill weekends as "Army Reserve bullshit" and "a bunch of smoking and joking and a waste of taxpayers' money." While the final decision maker had nothing against Staub's military service, she did review his personnel file, which contained the disputed write-up alleging that Staub had mishandled a routine job assignment. Among other allegations of misconduct, that write-up motivated the otherwise neutral decision maker to terminate Staub, prompting his lawsuit.
A jury ruled that Staub's termination violated USERRA, awarding him $57,640 in damages. The verdict drew in part from the negative write-up by the supervisors who frowned on Staub's military obligations. The Court of Appeals for the Seventh Circuit threw out the verdict, concluding that bad actors along the chain of command did not cause Staub's termination because they did not have "singular influence" over the final decision maker, even if the latter did not undertake a "robust" investigation into the negative allegations against Staub. Raising the burden on plaintiffs attempting to show that the process was infected by a discriminatory supervisor along the way, the Seventh Circuit stated that the civil rights laws "do not require the decision maker to be a paragon of independence. It is enough that the decision maker is not wholly dependent on a single source of information and conducts her own investigation into the facts relevant to the decision." The Supreme Court has taken the case to decide under what circumstances employers may be liable for employment discrimination where the events leading up to the plaintiff's termination was tainted by a supervisor who harbored discriminatory intent, even if the final decision maker did not.
The Cat's Paw
In many discrimination cases, the plaintiff argues that the sole decision maker harbored discriminatory views in violation of Federal law. In that scenario, there is no dispute that the decision maker was the only bad actor. In contrast, the Staub case raises an issue that affects employees in the modern, hierarchical working environment, where promotion and termination decisions follow a multi-supervisor decision making process that may be infected along the way by a manager harboring discriminatory views toward workers protected under the civil rights laws. When someone is fired as a result of a biased supervisor whose input affects the termination decision, courts refer to this theory of discrimination as the "cat's paw," named after a 17th Century French fable where a monkey persuades an unsuspecting cat to grab chestnuts from the fire. The monkey profits after the cat burns her paw, having taken the monkey's word for it. The Supreme Court has never decided a case on the cat's paw theory and its past rulings have given little hint on whether it would allow discrimination plaintiffs to win their case without showing that the final decision maker was motivated by racial, gender, or any other form of unlawful discrimination.
In their written submissions to the Supreme Court, Staub's lawyers argued that "so long as the official whose actions led to injury was an agent [of the employer], it is unimportant whether that official was the first or last in the series of decision makers involved." Quoting from a prior Supreme Court decision in the employment discrimination field, the lawyers added, "where a supervisor exercises the authority actually delegated to him by his employer, by making decisions…affecting the employment status of his subordinates, such actions are properly imputed to the supervisor to make them."
In addition, they attacked the Seventh Circuit's "singular influence" theory of cat's paw liability as too narrow and inconsistent with the general rule in employment discrimination cases that "corporations are responsible for the knowledge and motives of subsidiary officials, even if those motives are not communicated to ultimate decisionmakers."
The attorneys further argued that under the "singular influence" standard, "an employer is not liable so long as the final decisionmaker relied at least in part on any information that did not come from a biased official. That rule invites employers to largely immunize themselves from liability for violating USERRA or federal anti-discrimination laws merely by requiring human resources officials to go through the motions of reviewing information from two different sources, which usually would require no more than a quick pro forma glance at a worker's personnel file."
In contrast to Staub's arguments in the Supreme Court, some Federal courts around the country have made it nearly impossible for plaintiffs to challenge terminations that were influenced by biased supervisors. As the Supreme Court noted in 2009 in an unrelated case, "the least employee-friendly standard asks only whether 'the actual decisionmaker' acted with discriminatory intent." That standard would insulate the employer from liability no matter how racist or sexist influential lower-level supervisors were.
With courts around the country issuing conflicting opinions on how to apply the "cat's paw" theory of discrimination, the Supreme Court took up the Staub case to establish a workable rule. Although the Court draws upon a large body of case law and common-law legal principles in interpreting relatively terse statutes like Title VII, its rulings necessarily reflect the biases and life experiences of the justices. All of them went to Ivy League schools and, particularly the more conservative justices, held high-ranking positions in government and the private sector before ascending to the Federal bench. If the justices did work as rank-and-file employees, they did so briefly. It is fair to say that none of them ever brought an employment discrimination lawsuit or found themselves vigorously cross-examined by management's counsel about the disputed contents of their personnel files. Only one Supreme Court Justice, Ruth Bader Ginsburg, actually represented employment discrimination plaintiffs.
At times, even the conservative Justices get it right in ruling on employment discrimination cases. In 2000, the Supreme Court set aside reams of pro-employer case law from the lower courts that practically required plaintiffs to produce "smoking gun" evidence of discrimination in order to win their cases. Over the last 25 years, the Court has also been sensitive to the claims of sexual harassment plaintiffs in ruling that trial courts may not throw out these cases before viewing the victim's work environment as a whole and paying "careful consideration of the social context in which particular behavior occurs and is experienced by its target."
Since the Supreme Court usually decides cases after the lower Federal courts have issued conflicting rulings on the same issue, it has a range of legal interpretations to choose from. These conflicting rulings by experienced Federal judges around the country further confirm that many legal problems have plausible solutions on both sides of the ideological spectrum. Since the cat's paw theory of discrimination is a fresh issue for the Supreme Court, we only have informed guesswork in predicting whether the Justices will favor employees or management on this issue.
One place to look is the oral argument transcript from November 2, 2010. Since most of the Justices ask questions at argument, the transcripts give journalists and researchers a sense of how the Justices see the issue before they issue a ruling.
The most conservative Justice on the Court, Clarence Thomas, rarely asks questions. However, the four other Justices who comprise the Court's conservative bloc were skeptical in questioning Staub's lawyer at oral argument when he suggested that any significant discriminatory link in the chain of decision making makes the employer liable for discrimination. The exchange went like this:
JUSTICE ALITO: Could I just ask where your argument leads? Let's say that an employer calls in an employee and says: "Now, we have to decide who to lay off and we have looked at your record over the last 10 years, and here it is, all the evaluations you've gotten over the past 10 years, and based on all of that, we've decided that you are going to be the person to be laid off." Now if it turns out that one of those evaluations was rendered by someone who had an anti-military bias, would that…be a prima facie case against the employer?
SCHNAPPER: It would.
JUSTICE ALITO: Even if the employer at that time…made every reasonable effort to investigate the validity of all the prior evaluations, still the employer would be on the hook?
SCHNAPPER: Yes. There is nothing in the statute or in the common law that creates a special rule for thorough investigation.
JUSTICE KENNEDY: Well, that's a sweeping rule. I was going to ask a related hypothetical. Suppose the officer who is in charge, charged with the decision to terminate or not to terminate, says: "I'm going to have a hearing. You can both have counsel." And…suppose the two employees that were allegedly anti-military here testified and they said there was no anti-military bias, and the person is then terminated. Later the employee has evidence that those two were lying. Could he bring an action then?
SCHNAPPER: Yes. Yes.
JUSTICE KENNEDY: That's sweeping. That almost [ensures] liability insofar as the director of employment is concerned. He has to insure. He has done everything he can, he has an hearing, and he has almost absolute liability.
As the Court frowns upon overly broad legal arguments, Justice Kennedy's suggestion that Staub was making a "sweeping" point does not bode well for the plaintiff. Yet, in the context of employment discrimination law, which prohibits biased decision making that has a negative effect on the employee's career, Staub's attorney was simply suggesting that if the final decision maker unknowingly ratifies a discriminatory act that leads to the employee's termination, the employer is liable for discrimination. That is not a remarkable proposition, but it was to these Justices.
Other questions at argument from the more liberal Justices reflected impatience with the Seventh Circuit's narrow "singular influence" rule which means the employer can prevail if a discriminatory influence was among many that led up to the employee's termination. Yet, even Justice Scalia, perhaps the Court's most prominent conservative, suggested that the hospital's lawyer was making an extreme argument in proposing that the plaintiff cannot win unless the final decision maker himself harbored discriminatory intent.
JUSTICE SCALIA: You have to get us to believe—and I'm not sure we will—that motivating factor in the decision refers to motive on the part of the person who made the decision. That's essentially your point, isn't it?
There is always a danger in reading the tea leaves at oral argument. The Supreme Court does not issue rulings right away. Sometimes they ask questions at oral argument that do not reflect their views on the case. The Justices draft opinions and attempt to persuade others on the Court to join them. A 5-4 ruling can go the other way during this time. Surely the Court knows this case would affect the rights of millions of workers, as the Court's interpretation of the civil rights laws are binding on all lower courts and it may be years before the Court again takes up the issue to clarify any uncertainty produced by the ruling in this case. One thing is certain. While a Democratic Congress was able to overrule the pro-employer Ledbetter statute-of-limitations case in 2009, so long as the Republicans control the House, any negative ruling by the Court in Staub will remain undisturbed.
Stephen Bergstein is a New York attorney who writes on civil rights decisions (www.secondcircuitcivilrights.blogspot.com).