News

Earlier this month, Katz, Marshall & Banks partner Debra S. Katz published the commentary “Are oral complaints to supervisors protected under wage-and-hour law?” in the National Law Journal’s Supreme Court Insider Blog, the first in a four-part commentary on employment law cases pending before the Supreme Court this term.  This week, KMB associate Michael Filoromo, III and partner Debra S. Katz published the second in that commentary series, “Will justices claw at ‘cat’s paw’ theory of employer liability?” laying the ground for the upcoming Staub v. Proctor Hospital case, which was granted certiorari to decide the issue of the extent of employer liability in cases where wrongful termination decisions are influenced or caused by – but not directly made by – discriminating parties.  Vincent Staub, the plaintiff, was terminated from Proctor Hospital, in a decision clearly caused and influenced by coworkers who harbored animus toward his army reserve status, a position protected against employment discrimination by the Uniformed Services Employment and Reemployment Rights Act.  The actual terminating manager displayed no such bias.  Because the Seventh Circuit Court of Appeals employs a strict “cat’s paw” theory of employer liability, which requires that the formal decision-maker act under the “singular influence” of a biased nondecision-maker, the court  found in Proctor Hospital’s favor, though other Circuit Courts with less stringent standards of employer liability would likely have found in Staub’s favor.  Filoromo and Katz assert that “a pure “cat’s paw” approach does not effectively protect employees from discrimination in the workplace,” and argue in favor of a more rigorous standard of employer liability in such cases.  This would “capture the logistical realities of the modern workplace and the different ways in which discriminatory animus may rear its head,” since “most major employers use a multistage personnel process” and would close “a giant loop hole in the anti-discrimination laws,” which “invites the creation of a system of intentionally ignorant decision-makers.”