Workplace Issues: High Court reinstates Army reservist’s ‘cat’s paw’ bias claim

Lindy Korn

An army reservist fired from his civilian job as a hospital technician has a discrimination claim under the Uniformed Services Employment and Reemployment Rights Act based on evidence that two allegedly biased immediate supervisors’ reports influenced the termination decision, a unanimous U.S. Supreme Court ruled on March 1, Staub v. Proctor Hosp., no. 09-400.

In this case, the plaintiff sued under USERRA (the law that prohibits discrimination against employees with military obligations). Two supervisors made it clear they did not like Staub’s military commitments and they prepared reports that criticized his violation of company policy.

Staub argued at trial that these reports were false. The decision maker terminated Staub’s employment, in part, because of these negative reports. Although the jury found in Staub’s favor, the Seventh Circuit threw out the verdict, holding that the non-decision maker supervisors did not exercise “singular influence” over the termination decision.

The Supreme Court rejected the Seventh Circuit’s narrow standard and sets forth the following rule: “If a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is the proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

This holding will certainly apply under Title VII and the Age Discrimination in Employment Act, among other employment laws.

In a concurring opinion joined by Justice Clarence Thomas, Justice Samuel Alito agreed with the court’s decision based on USERRA’s text rather than on tort and agency law principles. Justice Alito said he would hold that an employer is not liable when an unbiased official who makes the termination decision conducts “a reasonable investigation” and does not just “rubberstamp” the allegedly biased supervisors’ findings.

Since Staub’s evidence indicated that the decision maker took the biased supervisors’ statements at face value, Justice Alito said he concurs in reinstating Staub’s USERRA claim.

In the Second Circuit, relevant language in this area reads like this: “We recognize that the impermissible bias of a single individual at any stage of the promoting process may taint the ultimate employment decision in violation of Title VII. This is true even absent evidence if illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the promotion process,” Bickerstaff v. Vassar College, 196 F.3d 435,450 (2d Cir. 1999).

This language may run afoul of the new rule set forth in Staub, which requires more than just a discriminatory link in the chain leading to the plaintiff’s termination.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at [email protected] or (716) 856-KORN (5676).