A Workplace Lesson on Confirming Grounds for Termination

A hospital lab technician and army reservist sued his employer claiming two of his supervisors openly discriminated against him because of his military status and duties. The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to treat military veterans fairly, prohibiting terminations and other major employment decisions motivated by a worker’s military status.

The reservist asserted his supervisors had voiced their displeasure with his military status with one of them intentionally scheduling him for work on his training weekends. He also claimed his supervisors issued groundless disciplinary warnings which ultimately and unfairly caused his termination by HR.

Although HR was not motivated by hostility regarding his reservist duties, he asserted the personnel manager (and thus the company) was the “Cat’s Paw” for the two supervisors. As the fable goes – sometimes wrongly attributed to Aesop — a monkey persuades a cat to grab roasting chestnuts from a fire which the monkey then eats (or steals), leaving the cat nothing except a burnt paw. Thus, the supervisor (monkey) purportedly asked the HR manager (cat) to issue the termination (chestnuts). HR and the company, unaware of the supervisor’s underlying discriminatory motives, get “burnt” when the HR manager approves the decision.

In Staub v. Proctor Hospital (2011) 131 Supreme Court 1186, the U.S. Supreme Court ruled that an employer can be liable under the “Cat’s Paw” theory if:

• A supervisor performs an act motivated by unlawful bias (in this case anti-military bias);
• The act is intended to cause an adverse employment action (in this case termination); and
• The act is a legal cause of that adverse employment action.

The Supreme Court decision expands the protections against workplace discrimination. Under these circumstances, HR’s lack of knowledge of the discrimination or a HR manager’s mistaken basis for a termination may no longer be relevant or controlling.

What should employers do now?

• Be on the alert for potential biases in supervisors;
• Institute and enforce formal complaint procedures directing employees to promptly report any supervisor’s wrongful conduct;
• Allow the employee being terminated a fair chance to present his or her side of the story;
• Before implementing a requested adverse employment decision, HR should confirm by objective evidence a supervisor’s asserted basis for the decision;
• Thus, avoid automatically signing off on a supervisor’s recommended adverse action, especially where such decisions are based on subjective criteria; and
• Train supervisors and managers on anti-discrimination and retaliation laws as well as how to properly communicate disciplinary action and job expectations.

It is of course also a good idea to seek knowledgeable labor and employment legal counsel to help management navigate potentially troublesome terminations.