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Supreme Court May Consider Cat’s Paw Theory

What happens when someone other than a high-level supervisor decides to fire an employee based on the influence of a discriminatory lower-level supervisor? This is the issue that the U.S. Supreme Court is considering to address in the case of Staub v. Proctor Hospital.

Vincent Staub, a member of the Army Reserve, alleged that he was fired from his job because of the influence of a supervisor who was anti-military. A jury awarded him $57,640, but the 7th U.S. Circuit Court of Appeals reversed the verdict in March 2009. Under the "cat's paw" theory, an employer can be held liable for discrimination when a final decision-maker is influenced to take an adverse action against another worker by a lower-level employee with discriminatory motives. Several federal circuits follow the “cat’s paw” theory while others do not. In November 2009, the U.S. Supreme Court asked the U.S. Solicitor General for the views of the United States.

Whether you plan on negotiating a severance agreement or entering into a round of mediation, an attorney can advise you about your ultimate goals. Depending on individual circumstances, it may be important to consider:

• If the negotiation requires withdrawal of an administrative charge of discrimination, in the alternative, is the client will to undergo lengthy and costly litigation?
• Is the employer offering an early retirement policy that is compatible with the clients needs, including health care?
• Is the employer agreeable to not contesting unemployment benefits?
• Is the employer willing to explicitly state that the reason for termination was a reduction in force or other reason that is preferred by employers?
• Is the employer willing to maintain confidentiality about EEO charges or retention of counsel?
• Is the employer willing to provide a positive letter of reference?
• Is the employer willing to clean the employee’s personnel file about any adverse actions, such as disciplinary warnings?
• Is the employer willing to forego a non-competition agreement or narrow it?
• When will the employer pay commission earned? Will the termination date affect the payment of commissions? Is the employee’s pension/401K options vested? Will the termination date affect the payment of these benefits?
• What are the terms for COBRA coverage? Can COBRA costs be limited to those of a current employee?
• What is the employer’s policy on accrued sick leave?
• What is the form of payment?
• Is the employer willing to document payment of attorney’s fees for tax reasons?
• Is the employer willing to release the employee for claims arising from employment?
• What legal provisions in the severance agreement or mediated agreement that protect the employee in case of default?