On March 1st, 2011, the U.S. Supreme Court decided that a lower-level supervisor’s discriminatory motive in proposing disciplinary measures against an employee can form the basis for liability under the anti-discrimination laws in employment like Title VII of the Civil Rights Act of 1964 and the Uniformed Services Employment and Reemployment Act of 1994 ( USERRA ). This is known as a Cat’s Paw theory of liability for employment discrimination, as the lower-level supervisor proposes disciplinary action against an employee for an improper motive but the decision-maker may not have a discriminatory motive but relies upon the lower-level supervisor’s recommendation. While the actual decision-maker lacks a discriminatory motive, the decision is still tainted by the lower-level supervisor’s discriminatory motive. As long as the lower-level supervisor’s act, which was motivated by an unlawful discriminatory motive, is the proximate cause of the adverse action, like termination or a suspension, then the employer may be held liable for a violation.
This analysis can also apply to make discriminatory performance reviews that result in adverse action like termination, suspension, failing to promote, actionable where the reviewing supervisor gives negative remarks out of an unlawful discriminatory motive.
In Staub, the issue was related to an employee’s military leave, and the decision was made under the USERRA law, but the Supreme Court also discussed how the law would be applied in other areas of employment discrimination claims.