The Supreme Court of the United States is the ultimate Court of the land. The U.S. Constitution created one court that would have authority to rule over all laws, that is the short and simple version. Before we get to the Supreme Court though a person or company must go through two tiers of lower courts. We have two court systems in the U.S. and both can lead to the Supreme Court.
There are many roads that can lead to the Supreme Court but the Supreme Court is really an appellate court. Cases that come before the Supreme Court are the results of lower court cases where one party feels the lower court misapplied the law or the Judge made a mistake or the lower courts simply disagree. There are no juries or witnesses to be heard from as that is all done in the lower courts. The Supreme Court has the record from the lower court and gives each side an opportunity to argue why the law should be applied in the manner they believe or why there was a mistake and they should be given a new trial or new judgment. That is really a simplified answer but for this series of post it is all we need.
Currently the Supreme Court has a case before them that deals with the Cat’s Paw Theory discussed in the last post. The case is Staub vs. Proctor Hospital. The case actually originated from a USERRA case not a Title VII case but the two both deal with employment law and discriminatory intent. USERRA is the Uniformed Services Employment and Reemployment Rights Act of 1994. It is a federal law intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other “uniformed services:” (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service.
Although Jane’s case is under Title VII of the Civil Rights Act and the case before the Supreme Court is under USERRA, it is the “no discriminating” part under both acts that the cat’s paw theory applies to so the Supreme Court’s decision could have a good deal of influence on Jane’s case. The laws themselves are written in a similar fashion as the intent of both Acts is to stamp out discrimination in the workplace.
Staub is a military reservist who has mandatory training and can be deployed at any time. Staub was terminated from his civilian job with Proctor Hospital. He sued alleging it was parties who held a discriminatory intent towards him due to his military reservist participation as the cause of him being fired. The problem is that the Human Resources person who actually terminated him had no discriminatory intent against him at all. She relied on the information from the parties Staub claims held the discriminatory intent against him.
His case went to through the lower court and a jury was seated and decided in Staub’s favor. The jury found Proctor Hospital, the employer, did terminate Staub based on an illegal bias and not for the legitimate reason the employer gave. The employer alleged he was a bad employee and warranted firing and the discriminatory intent held by the other people didn’t matter because the final decision maker had no discriminatory intent at all. Sound familiar?
Jury awards Staub damages and case is over, well not really it was just beginning. Proctor Hospital would ask the judge to set aside the jury verdict (yes a judge can overrule a jury more on that in a later post). The lower court judge does not do it so Proctor Hospital appeals to the middle appellate court. The appellate court reverses the jury decision and finds for Proctor Hospital so Staub loses. Staub then files in the Supreme Court arguing that the appellate court erred by relying on case law that is contrary to the actual law.
The Supreme Court doesn’t have to take every case that is presented to them. The Court picks and chooses the cases it wants to hear. People misconstrue that to mean that the Supreme Court agrees with the appellate courts decision but that really isn’t the case. The Supreme Court can only hear so many cases and they try to pick the cases that effect the most people or where the law is misconstrued or misapplied unequally throughout the lower courts. The Supreme Court chose to hear Staub vs. Proctor Hospital due to the split among the lower courts.
Cat’s Paw Doctrine is a case law driven theory. This means that lawyers and the Courts have taken the actual law and interpreted it in a way that this legal theory applies to the law. Seems wrong but actually it is right. Congress has set the laws but left the gray area so the law could be applied to individual cases with various facts and scenarios. It is the theories presented in the cases that actually define the law and narrow it down to apply to each individual case. In Staub’s circuit, Cat’s paw theory has been interpreted by the courts in a way that the employee must show “singular influence”. The employee has to prove that the person or acts by the person who held the discriminatory intent singularly influenced the decision maker. If the decision maker relied on anything else when making the decision then Staub loses.
The lower court accepted the jury’s findings. The appellate court felt the decision maker wasn’t influenced singularly by the person holding discriminatory intent. The Human Resources decision maker relied on the discriminatory acts but also relied on Staub’s personnel file and work history so no “singular influence”. Staub believes this is a misapplication of the actual written law. Staub goes to the Supreme Court not to have his case retried but to get a question answered about the case driven law. Is the case driven law an accurate reflection of the actual written law by Congress?
Now the Supreme Court is going to answer a single question:
In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?
Jane’s circuit does not interpret Cat’s Paw Theory in the same manner as Staub’s circuit does so it would seem not to matter what the Supreme Court rules. However, the Supreme Court is the ultimate law of the land so whatever decision they make will alter how all the circuits apply the law not just Staub’s circuit. The Supreme Court’s decision could end Jane’s case all together in favor for or against her. More crazy I know.
Either way, clarification from the Supreme Court on the cat’s paw theory is something that was going to have to be done sooner or later. When the lower courts all apply such varying standards something has to be done. The laws should be applied more uniformly across the lower courts. There will rarely be an exact uniform standard as each case has to be decided based on the facts before the court but there should be some uniformity and right now there just isn’t when it comes to the cat’s paw theory.
Jane’s circuit, which is my circuit, uses a causation standard. Did the unlawful intent cause the termination? If Jane can prove Skippy was retaliating and his false reports caused the termination she wins. However, if the employer can show that Marcia and Peter investigated the reports and they all looked legitimate or there were witnesses who agree with the false reports or Jane has a history of the type of behavior Skippy has alleged then the employer is off the hook.
Jane was terminated for 7 different reasons, 6 of those reason all stem from Skippy’s reports. Only 1 of the 6 has outside witnesses and they don’t confirm Skippy’s reports. The 7th reason for the termination was disrespectful and irresponsible statements taken from the complaints Jane filed about Skippy’s retaliation. Jane doesn’t have a history of the behavior Skippy alleges to have occurred. It all looks good for Jane on the surface. But first Jane has to prove Skippy was retaliating.
If you recall from the previous article you know that the lawyers for XYZ Co. failed to even mention Jane’s allegations against Skippy when they asked to have her case dismissed. As you can see now, that is a vital piece of the case. Without the allegations against Skippy, Jane’s case won’t hold up in court so well. Can’t really argue cat’s paw theory if there is no monkey in the background using the cat to do his deed.
Now We Wait Or Do We?
Most people think that this is easy. The lower courts just wait to see what the Supreme Court says and then proceed. That isn’t how it works. The lower courts can not come to a stop and just leave cases sitting around until the Supreme Court issues a ruling. All the cases in the lower courts will continue to go forward under the current law and case driven law. When and if the Supreme Court rules then the lower courts will decide what to do and how to move forward.
The Supreme Court is not deciding if the cat’s paw theory can be used because the Supreme Court has already found “subordinate bias” to be a legitimate claim. Subordinate bias and cat’s paw theory are the same thing. What the answer the Supreme Court is going to give is really going to be about what evidence does the employee or the employer need to either succeed or escape liability. What does the employee have to show the court for the court to hold the employer liable?
The Court could do away with the cat’s paw theory and say it doesn’t matter who the decision maker is at all and the only thing to be considered is whether someone with unlawful intent was involved. That is very broad though so I doubt they will go that far. It would make sense to set the standard of what needs to be shown through the evidence.
There is no one definition for investigated thoroughly. There is no one definition for influenced. Those things need some kind of framework and standard so the employee and the employer know what to do. If the Supreme Court is going to allow cat’s paw theory, they most likely will, the lower courts need to know what is the standard. When the judges of the lower courts look at the evidence they need to be able to determine if that evidence is sufficient to meet the standard. The lower courts do that now under the different models of cat’s paw theory but are the different models the lower courts use really doing what Congress intended the law itself to do? That is the real question.
This could result in a major win for employers. If the Supreme Court rules that it is only the intent of the decision maker it will make it very easy for them to escape liability and not have to concern themselves with retaliation at all. An employer merely sets up a system where all decisions go through a person who has no interaction with the employee and is unbiased in every way. I just don’t see this happening as it is very broad as well. That type of ruling would essentially make the retaliation law a toothless tiger as well.
It would seem more likely that the ruling will set the standard of what needs to be shown by the employee to hold the employer liable. I listened to the oral arguments of the Staub case and the Justices raised some very good points on both sides. We can’t hold employers responsible for every single thing especially if the employer is not even aware it is going on. On the other hand, an employer has a duty to its employees to ensure retaliation and discrimination are not going on as well. So where is the balance, the middle ground that I am so found of? Well that is for the Supreme Court to decide. Whatever they decide will be important for both employers and employees.
The Entire Staub vs. Proctor Hospital Case
The Supreme Court not only hears from each side but also allows briefs from interested parties in support of either side. If you want to see each sides position and supporting briefs following the links below.
Briefs on the merits:
for Petitioner Vincent E. Staub
for Respondent Proctor Hospital
Brief for Petitioner Vincent E. Staub
for the American Federation of Labor and Congress of Industrial
Organizations in Support of Petitioner
for Leave to File Amicus Curiae Brief and Brief for the American
Association of Justice in Support of Petitioner
for the Reserve Officers Association of America in Support of Petitioner
for the United States of America in Support of Petitioner
for the Lawyers’ Committee for Civil Rights Under Law, AARP, and Equal
Justice Society in Support of Petitioner
for the Chamber of Commerce of the United States of America in Support
for the Equal Employment Advisory Council in Support of Respondent
for the National Federation of Independent Business, Small Business
Legal Center in Support of Respondent
for the National School Boards Association in Support of Respondent