An old fable, sometimes inaccurately attributed to Aesop, is so rich in parallels to human behavior that it has provided us with a legal theory and some lessons in business management.
The fable tells this story: A cat and a monkey are always hungry and always getting into mischief around the
house. In the kitchen, some chestnuts have been roasting and are now ready to eat but are still in the hot embers of the fire. Using flattery — “I could do it, but you are SO much better at it” — the monkey talks the cat into retrieving the chestnuts, saying that they would share them. The cat pulls them out of the embers, burning her paw in the process, but the monkey runs off with them all.
The fable gave rise to the expression “cat’s paw,” to describe someone who is unwittingly manipulated into doing something. It’s a polite way of referring to a dupe or a stooge.
In March, the U.S. Supreme Court decided a wrongful termination suit that had been filed under the Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA). The case, Staub v. Proctor Hospital, involved a hospital technician, Vincent Staub, who was a member of a U.S. Army Reserve unit and had active service obligations for recurrent monthly and annual training.
It was established that Staub’s immediate supervisor and his supervisor’s supervisor each held a strong anti-military bias. Since neither of those two actually made the decision to terminate Staub’s employment, though, his employer argued that it could not be held liable for a wrongful termination due to illegal bias.
The heart of the Supreme Court’s decision is the “cat’s paw” element — interpreting and sorting out the motivational factors and determining how much influence over the termination decision his biased supervisors had. A key issue was whether Staub’s supervisors manipulated his personnel record, allowing illegal discrimination to become a significant factor in his firing.
The court decided, “If 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.”
This is an important decision for those of us who manage businesses. While it was a USERRA case, the court made it very clear that the key elements in that law affecting their decision were the same as the anti-discrimination provisions in Title VII, the employment law that covers all workplaces.
Despite the court’s efforts to clarify things, there still some areas and limits of an employer’s liability under the “cat’s paw” principle yet to be defined. Still, the following recommendations may help business managers and owners to reduce unnecessary liability. The recommendations are based on managerial experience, not legal knowledge, and should be considered in that light.
Time is your friend. The old saying, “Act in haste, repent at leisure,” applies in employment decisions. Make sure that no worker is terminated “on the spot” or without an investigation. Even in situations where the worker is a danger to himself or others, a suspension accomplishes the same purposes and doesn’t close off any future options.
A decision-maker’s organizational or even geographic separation from a disciplined worker provides no relief from your liability if supervisors or others, possibly harboring illegal bias, are in a position to influence the decision — through written records, oral reports or advice.
When in doubt, shop it out. A records review, while always a good idea, is no substitute for an independent investigation. If you have the slightest doubt or suspicion about an employment situation, it pays to hire a legal firm experienced in labor law and workplace investigations. It’s not that you don’t trust your own people, but in a smaller business a truly independent investigation can be difficult to do. Since this is an increasingly complex area of the law, getting your legal education by losing a lawsuit can be very expensive.
Stop whining about the laws and how vague and onerous they are. Most of the anti-discrimination laws simply reflect good management practices that improve your organization’s effectiveness. The laws penalize managers who don’t know what is going on in their own workplace. Well, OK then.
Don’t let this latest U.S. Supreme Court ruling put you off from hiring military veterans. They make good workers and, unlike some job candidates these days, are not afraid of hard work and come prepared to do just that.
James McCusker is a Bothell economist, educator and small-business consultant. He can be reached by email at otisrep@aol.com.
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