What does a 17th century fable by French poet Jean de la Fontaine have to do with job discrimination?
In "The Monkey and the Cat," a monkey tricks a cat into scooping chestnuts out of a fire, leaving the gullible cat with nothing more than singed paws. Under fair labor laws, this scenario generally describes a situation where a decision maker is unwittingly manipulated into making a wrongful termination. Drawing the parallel between la Fontaine's fable and discrimination law, an employer (the cat) is liable for the bias of an employee, usually but not always a supervisor, who played no role in the decision, but nevertheless exerted some degree of influence (the monkey).
In this case, Vincent Staub brought his claim under the Uniformed Services Employment and Reemployment Act (USERRA), which, among other things, protects those in military service from discrimination upon their return to employment from active duty. Staub had been a long-time employee of Proctor Hospital before being called upon to serve in Iraq. Many at the hospital were critical of Staub's military service because of the strain it put on those who had to cover from him in his absence. When the Vice President of HR, who held no hostility towards Staub, terminated him, he sued, claiming that although the decision maker was not personally biased against his military service, she fired him based on the hostility of Staub's direct supervisors, as evidenced by critical and hostile statements that they made to him and unfair discipline.
Staub prevailed at trial but the circuit court of appeals reversed the jury verdict, holding:
"[W]here an employee without formal authority to materially alter the terms and conditions of a plaintiff's employment nonetheless uses her 'singular influence' over an employee who does have such power to harm the plaintiff for racial reasons, the actions of the employee without formal authority are imputed to the employer.... [W]here a decision maker is not wholly dependent on a single source of information, but instead conducts its own investigation into the facts relevant to the decision, the employer is not liable for an employee's submission of misinformation to the decision maker."
In other words, under the circuit court's analysis, the cat (employer) must be directly duped by the biased monkey (supervisor) to hold the employer liable for the discrimination of non-decision makers.
The Supreme Court did not take such a narrow view and reversed the court of appeals.
USERRA, like other federal fair labor statutes, prohibits employment discrimination because of military service. To establish discrimination under these laws, the employee must demonstrate that military service (or race, color, religion, sex, national origin, age, disability, etc.) "was a motivating factor" for and employment practice, even though other factors may have motivated the practice.
When an employer makes the decision to take an adverse employment action is personally acting out of hostility to the employee's membership in or obligation to a uniformed service (or any other protected class), a motivating factor obviously exists, the court noted. But the situation gets clouded when a biased supervisor is distinct from the ultimate decision maker.
In this case, the Supreme Court suggests that the court of appeals rule that the biased supervisor be a "singular influence" over the decision maker is too strict. Instead, the evidence could show a biased supervisor's action to be a "causal factor" in the decision. Thus, a supervisor that recommends a discharge may cause the discharge, even though he didn't make the ultimate decision. In short, a biased supervisor can taint the decision of another and thus constitute a motivating factor of the discrimination. Staub v. Proctor Hospital.
Case Law Summary March 2011