The Role of Supervisors in Employment Discrimination

JURIST Guest Columnist Ian Hayes, St. John's University School of Law Class of 2013, is the author of the eleventh article in a 15-part series from the staffers of the Journal of Civil Rights and Economic Development. He argues for the application of Staub v. Procter Hospital to Title VII claims to promote justice for workers...

Today, a woman may find herself in a situation where she was fired based on gender but has no legal remedy for this discrimination. Imagine the following hypothetical. A woman works under a supervisor who has repeatedly made it clear that he resents women who work for the employer because of his perception that they get pregnant at a moment's notice and leave a hole in the workforce. Part of the supervisor's job is to write evaluations for everyone he supervises and he writes several evaluations for the woman worker alleging that she has a poor attendance record. The supervisor does not report similar attendance concerns about male workers to his boss. A decision-maker in a managerial role, who does not know the female worker, reads the supervisor's written evaluation. Even though the decision-maker does not have the discriminatory intent of the supervisor, he decides to terminate the worker based on the supervisor's evaluation. Workers cannot sue their employer for such discrimination in all jurisdictions and employment discrimination law should be adjusted to make relief available for all workers who suffer such discrimination.

In some jurisdictions the worker could successfully sue the employer for employment discrimination using a legal theory called cat's paw liability. Under this theory, the employer is held liable for the discriminatory actions of the worker's immediate supervisor who caused the worker to be discharged by the employer. Such situations must involve:

  1. A decision-maker who discharged a worker, but did not personally discriminate against the worker;
  2. A supervisor who did discriminate against the worker, but did not have discharge authority and caused the decision-maker to discharge the worker; and
  3. A worker who was under the authority of the discriminatory supervisor.
In Staub v. Proctor Hospital, the US Supreme Court recently decided that a worker could successfully sue his employer for employment discrimination based on his supervisors' anti-military bias using cat's paw liability. In Staub, the decision-maker discharged Vincent Staub based on adverse reports from Staub's supervisor asserting Staub's insubordination. Staub's supervisor's anti-military bias fueled Staub's negative review and, thus, he was terminated indirectly because of the supervisors' discrimination. Staub sued the hospital for cat's paw liability under the Uniformed Service Employment and Reemployment Rights Act (USERRA), a federal law that prohibits employers from discriminating against workers because of their military status. The Supreme Court held that an employer is liable for a supervisor's discrimatory actions when the supervisor's deliberate anti-military discrimination played a substantial role in causing the manager to discharge the worker.

While the Supreme Court in Staub stated definitively that workers could bring successful cat's paw claims against employers for anti-military discrimination, it remained silent on whether cat's paw claims are valid under Title VII of the Civil Rights Act of 1964 — which prohibits employment discrimination based on sex, race, color, religion or national origin. For example, if a manager decided to terminate a worker because she was a woman, the worker would have a valid claim against the employer. However, courts in some jurisdictions fail to recognize cat's paw suits under Title VII. In such jurisdictions, if a supervisor discriminates and, thus, causes a manager to fire a worker based on gender, the worker would not have a valid claim for employment discrimination unless the manager also discriminated against the employee. Courts should move to allow cat's paw claims under Title VII because the majority of employment discrimination claims occur in this context.

To cure the unavailability of cat's paw claims under Title VII, federal courts should apply the reasoning from Staub to cases where a worker asserts that a discriminatory supervisor caused her discharge. In deciding Staub, the Supreme Court was not faced with the question of whether cat's paw liability is valid under Title VII because Staub's claim was not brought under Title VII. The Court has never decided a case under a Title VII cat's paw claim. Therefore, the applicability of Staub to statutes other than USERRA is open to interpretation. However, applying Staub's rule to Title VII suits is logical for several reasons.

First, Congress created USERRA and Title VII for similar purposes. The goal of both is to punish employment discrimination based on certain workers' protected status. The statutes allow a worker to sue her employer successfully when a decision-maker terminates the worker on a discriminatory basis, whether that discrimination is based on military status or the categories Title VII protects. To serve this purpose further, a worker discharged because of her protected status should have a valid claim against her employer regardless of the chain of causation between the discriminatory behavior and the worker's termination. Staub applied USERRA's policy of prohibiting anti-military discrimination broadly and such an accommodating reading of federal anti-discrimination law should hold for Title VII.

Second, the facts that give rise to typical USERRA and Title VII claims are similar. When both kinds of cases are brought, a worker has been discriminated against and discharged from employment because of a federally protected status, such as, military service or race, color, national origin or sex. One might argue that military status is voluntary and, therefore, conceptually distinct from the characteristics that Title VII protects, which are immutable and mostly not the result of a worker's choice to adopt those characteristics. However, Title VII also protects a worker's status that is voluntary. For example, Title VII prohibits employers from acting in a discriminating way because of a worker's pregnancy or religious practice.

Given that workers are denied relief because some jurisdictions fail to recognize cat's paw claims under Title VII, the extension of the Staub rule is important to plaintiffs. Expanding the rule would further the purposes of anti-discrimination statutes by giving workers the opportunity to pursue a valid claim against their employers for supervisors' discrimination, and thus, reducing discrimination in the workplace.

Ian Hayes is a Junior Fellow for the Center for Labor and Employment Law, an Articles Editor for the Journal of Civil Rights and Economic Development and the Monsignor Thomas J. Darby Scholar for Excellence in Labor and Employment Law. After graduating from Fordham University in 2007 with degrees in Philosophy and Sociology, he worked as an organizer for Service Employees International Union. Hayes was a Peggy Browning Fellow at Kennedy, Jennik & Murray P.C. in 2011 and is currently working at the National Labor Relations Board in New York City. He plans to practice labor and employment law after graduation.

Suggested citation: Ian Hayes, The Role of Supervisors in Employment Discrimination , JURIST - Dateline, Nov. 12, 2012, http://jurist.org/dateline/2012/10/ian-hayes-employment-discrimination.php.



This article was prepared for publication by Leigh Argentieri, a senior editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

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