Tuesday, March 1, 2011

SCOTUS Allows Cat's Paw Liability

About an hour ago, the Supreme Court issued its opinion in Staub v. Proctor Hospital, the so-called "Cat's Paw" case. Justice Scalia issued the opinion of the Court joined by all but Alito and Thomas, who concurred in the judgment in a separate opinion, and Kagan who did not participate. The Cat's Paw theory is that an employer can be held liable for "employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision."

The Court held that the employer will be liable under USERRA where:
  • A supervisor performs an act motivated by antimilitary animus;
  • The act was intended by the supervisor to cause an adverse employment action; and
  • the act is a proximate cause of the ultimate employment action.
Although Staub involves USERRA, protecting servicemembers from discrimination, Justice Scalia expressly noted in the opinion that "[t]he statute is very similar to Title VII." So I expect courts to apply this decision in Title VII cases, involving race, color, sex, national origin, and religion, as well. The decision is based on "motivating factor" statutory language though, so it may not apply to ADEA cases (see Gross v. FBL)... we'll see.

Image: That's my cat, Mr. Merlin. He's generally non-discriminatory except on the basis of whether you have food and/or treats for him. That is not a protected class under federal law.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

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