The Effect of a Cat’s Paw on Social Media and Employment Law

Just today, the United States Supreme Court issued a unanimous decision in the long-awaited “cat’s paw” case of Staub v. Proctor Hospital.    The decision will likely broaden the permissible theories under which a current or former employee might bring a discrimination lawsuit against a company, yet also serves as another cautionary tale even for those who use social media for employment-related decisions.

The “cat’s paw” term comes from a fable in which a monkey tricked a cat into taking chestnuts from another’s fire for the monkey’s own enjoyment.   In other words, a situation where one is influenced to do the wrongful dirty work of another.   In the context of discrimination claims, the term “cat’s paw” is, thus, used to refer to a situation where the decision maker may not have any discriminatory animus against the employee, but was so influenced by another supervisor who did have some discriminatory animus so as to infect the ultimate decision.

In Staub, the plaintiff was a member of the Army Reserve, and the record reflected that his immediate supervisor, and that supervisor’s immediate supervisor, harbored hostility toward the plaintiff’s military service.  After receiving some disciplinary warnings relating to plaintiff’s performance, the company’s Vice President of Human Resources made the decision to terminate plaintiff’s employment.   Plaintiff filed suit alleging that, even though the Vice President may not have been motivated by unlawful animus, the actions and animus of plaintiff’s supervisors influenced the Vice President’s termination decision (i.e., the “Cat’s Paw”).

After trial, a jury found in favor of the plaintiff, but the court of appeals reversed that verdict.   In today’s decision, the Supreme Court reversed that ruling on appeal, holding that unlawful discrimination can be found upon evidence that a supervisor performed an act motivated by unlawful animus that was intended by that supervisor to cause a subsequent adverse employment decision, even when the decision is made by someone else without such animus.

Employer Take Away:   What should you as an employer take away from this development?   And what does this have to do with social media?    There will undoubtedly be much more analysis of today’s Supreme Court decision in the coming days, including possible limitations of the Court’s holding, and the likely applicability of the holding to other types of discrimination claims.  

In the meantime, this case should serve to remind you that your company may no longer be completely insulated from potential liability just because a decision maker did not have any discriminatory animus against the subject of the adverse action.   Many companies continue to use social media for various employment-related decisions, and it is often the case that information obtained by the one searching the social media sites becomes known by the one making the ultimate employment decision.  Today’s Supreme Court ruling suggests that, when it comes to the decision making process, it is now more critical than ever that the decisions and decision makers are effectively sterilized from any potentially unlawful motivations developed by those who are tasked with searching social media sites and who may end up with more information than they perhaps wanted.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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