The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), prohibits discrimination based on an employee’s membership in the armed services. This case involves an employee who was discharged allegedly because of his association with the military. Normally an employer is liable when an employment decision is made with an animus against the protected employee. But in this case the decisionmaker had no such animus, and the Seventh Circuit ruled that the animus of another employee could not be imputed to the employer if the employer conducts a separate investigation into the facts relevant to the decision.
On March 1, 2011, the Supreme Court decided that an employer will be held liable for the discriminatory animus of an employee who affects an employment decision, even if that employee did not make the ultimate employment decision. The case involves the "cat's paw" theory of liability, where the company's decisionmaker is overly influenced by an employee with an improper motive. The term is derived from a fable about a monkey who persuaded a cat to pull chestnuts out of the fire, burning the cat's paw and giving the monkey the chestnuts.
Here, the Court found that where a management official expresses a discriminatory animus against an employee, and that employee is ultimately fired by another company official partially on the basis of that animus, the company may be liable for discrimination. According to the Court, "[I]f a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." The Supreme Court sent the case back to the lower courts to determine whether the jury instruction given constituted an error big enough to retry the case.
The decision poses particular difficulties for employers who wish to overcome the impact of a rogue supervisor's discriminatory actions. An employer must take steps to ensure that such actions are not the proximate cause of any adverse employment action against an employee.