If a supervisor performs an act motivated by an unlawful animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable the Supreme Court has ruled in Staub v. Proctor Hospital. The case examines the intersection of tort principles of proximate cause, agency law and statutory employment law prohibiting adverse employment actions "motivated" by unlawful animus or bias in what commonly is referred to as a "cat's paw" scenario.
The employee, Staub, was a member of the United States Army Reserve. His supervisors, Mulally and Korenchuk, were hostile toward his military obligations and, according to evidence presented at trial, agitated to "get rid of him." Toward doing so Mullaly conjured up a corrective action disciplinary warning for Staub. Subsequently, Korenchuk informed the hospital's human resources director, Buck, that Staub had violated the corrective action warning earlier issued by Mullaly. On this basis, Buck terminated Staub's employment. Staub then filed a grievance and claimed that Mullaly had fabricated the initial corrective action based on hostility toward his military obligations but Buck did not change her decision to terminate Staub.
Staub filed suit under the Uniformed Services Employment and Reemployment Rights Act of 1984 (USERRA), which prohibits, among other things, firing an employee where a "motivating factor" for the firing was the employee's military obligations. A jury found in Staub's favor and awarded him $57,000 in damages but the Seventh Circuit reversed.
The Supreme Court framed the question as "the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision." In reaching its holding the Court made the following observations:
- when Congress creates a federal tort (such as USERRA or Title VII) it adopts the background of general tort law
- USERRA is "very similar" to Title VII, which prohibits employment discrimination where an unlawful criteria "was a motivating factor" for the employment action
- Animus and responsibility for the adverse action can both be attributed to the earlier agent (here, Staub's supervisors) if the adverse action is the intended consequence of that agent's discriminatory conduct. So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable under USERRA. And it is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent's action (and hence the earlier agent's discriminatory animus) from being the proximate cause of the harm.
- Proximate cause requires only "some direct relation between the injury asserted and the injurious conduct alleged" and excludes only those "links that are too remote, purely contingent or indirect."
- The decision-maker's exercise of judgment may be also a proximate cause of the termination but "it is common for injuries to have multiple proximate causes" Sosa v. Alvarez-Machain, 542 U.S. 692, 704 (2004)
- the ultimate decisionmaker's judgment cannot be deemed a superseding cause unless it is a "cause of independent origin that was not foreseeable." Exxon Co., USA v. Sofec, Inc, 517 U.S. 830, 837 (1996).
- Since a supervisor is an agent of the employer, when he causes an adverse employment action the employer causes it; and when discrimination is a motivating factor in his doing so, it is a "motivating factor" for the employment action.