Client Alert

An Employment Decision Can Be Discriminatory Even If The Decision-Maker Has No Discriminatory Intent, Supreme Court Rules

March 09, 2011

Neal Mollen & Mitch Mosvick

When a manager makes an employment decision without considering the protected characteristics of those involved, we would ordinarily think that, almost by definition, a plaintiff could not make out a claim of intentional discrimination. But what if the pure-hearted manager relied in part on information provided by another manager who harbored a secret bias? Does the unbiased decision thereby become the fruit of a poisonous tree and a basis for employer liability?

That thorny problem divided the lower federal courts for years. Twice, the Supreme Court granted certiorari to set rules for dealing with so-called cats paw cases, but in both instances, the cases settled before a decision could be rendered.

Last week, however, the Supreme Court held in Staub v. Proctor Hospital that an employer may be liable when an adverse action is taken by an otherwise unbiased decision-maker if biased information from another supervisor proximately caused the action.

The Court struck down the most restrictive (or employer friendly) formulation of the cats paw theory that had previously been adopted in the lower courts, but left many questions unanswered about how the doctrine will work in practice. The Court addressed the issue in a case involving the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), a statute that is rarely the subject of litigation, but the opinion will almost certainly be cited as precedent in cases arising under Title VII and at least some other federal nondiscrimination statutes.

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