A few employers may be familiar with a recent U.S. Supreme Court ruling on March 1, 2011, regarding the case of Staub v. Proctor Hospital and how “cat’s paw” liability played a part. Cat’s paw liability involves an employer being held liable for unlawful discrimination, even though the “motivating factor” in the employment decision-making process stems from an unlawful bias of a supervisor with no employment decision-making authority.
“Cat’s paw” relates to a fable about how a monkey convinces a cat to steal chestnuts from a fire, steals the same nuts from the cat, and then leaves the cat with empty but burnt paws. In the context of the workplace environment, the supervisor is the monkey as the employer is the cat.
At times, it may be difficult to determine what is considered to be an unfair discriminatory situation. Staub had sued the hospital under the Uniformed Service Employment and Reemployment Rights Act (USERRA), which prohibits discrimination against employees serving in the military based on their military status. However, courts may apply similar “motivating factor” tests and decisions in cases under other federal employment laws. Therefore, employers need to be aware of members of all “protected classes” (based on sex, religion, race, etc.) in the workplace in order to make sure that equal opportunities and fair practices are consistently administered.
To help minimize the company’s risks of cat’s paw liability, an employer may apply various preventative measures, such as the following:
- Revisit your company’s mission statement and values.
- Consistently employ fair hiring practices regarding job candidates and employees seeking new job opportunities within the company.
- Review and update the company’s discrimination and harassment policies to ensure they cover clear steps for reporting complaints.
- Assess the company’s process of weighing recommendations and making decisions resulting in adverse employment actions.
- Train managers and non-managerial workers (especially those with recruitment duties) on how to conduct fair hiring practices and procedures toward maintaining equal opportunity compliance.
- Train all members of management on how to effectively investigate for facts, substantiate the findings, and objectively decide on any employment action.
- Conduct independent investigations when appropriate.
In all, remain diligent in ensuring that each adverse employment decision is supported and documented by legitimate nondiscriminatory reasons and evidence.