A 17th century French fable called “The Monkey and the Cat” played a role in an HR-related case ruled on by the U.S. Supreme Court earlier this month. And you should know about the ruling to keep your company out of court.
Here’s the modern day scenario: Someone at your staffing company, a non-decision maker when it comes to hiring and firing, bears ill will or bias towards an employee or a temp. The discriminator schemes to influence the decision maker resulting in a write-up or a firing. This occurs even though the decision makers themselves were merely acting on (false) information. Can the decision maker be held liable for that?
The Supreme Court says yes. Here’s how it relates to the French fable.
In the fable, a clever monkey convinces a naïve cat to retrieve some chestnuts from a fire where they are roasting. For her part, the cat burns her paw while the monkey then grabs and eats the chestnuts. From this story, the term “cat’s paw” has come to mean a “tool” or “one used by another to accomplish his purposes."
In employment discrimination cases, a “cat’s paw” scenario is presented where a biased staffer of an employer, who lacks decision making power, uses the formal decision maker as a dupe to deliberately trigger a discriminatory employment action with bias as the motivating force.
Here’s how that got an HR VP and the company she worked for in trouble.
Vincent Staub worked for Proctor Hospital of Peoria, Illinois. He also was an Army reservist. Staub claimed that after 10 years, things became strained at work. He said the person who took over scheduling in the hospital's diagnostic imaging department where he worked, gave Staub problems when his reservist schedule conflicted with his hospital work schedule.
Staub complained about the scheduling problems to his department head. He said not only did she fail to address the problems, but even went so far as to make disparaging comments about reservists.
Staub was then called up for active duty. He only served 92 days, but still faced complaints from his supervisors that his absence put strain on the department.
One additional time Staub notified his supervisors that he would have to report to "soldier readiness processing," a precursor to active deployment. Within a few weeks of that notice, Staub said he received a written warning from the hospital for “failing to follow orders.”
Eventually Staub was fired by Proctor’s Vice President of Human Resources Linda Buck. She said she made the ultimate decision but relied on information given her by Staub’s supervisors, one of who had called his military duties “bulls**t.”
The department head also made a comment that Staub’s reserve duties consisted of “a bunch of smoking and joking and was a waste of taxpayer’s money.”
After his firing, Staub sued under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), arguing that his firing was based on discrimination against him for his military reserve membership.
A jury in federal court found in favor of Staub. They said Staub persuaded the jury that the deputy director of the department fed false information to the HR decision maker, and that this was motivated by his membership in and activities with the military reserve. In other words, the “cat’s paw.”
The Seventh Circuit reversed and dismissed the case. However, the Supreme Court took it up and ruled on March 1st in favor of Staub. The court said, “An employer is liable under the Uniformed Services Employment and Reemployment Rights Act of 1994 for its management-level employee's antimilitary bias if that bias is intended to cause an adverse employment action.”
Of course it has implications beyond discrimination merely for military service.
The takeaway? Before firing someone for a poor performance review, the Supreme Court says you better ensure those reviews are based on actual performance, and not bias or discrimination or the motives of someone who wants to get someone else fired.