In the March 2011 decision, Staub v. Proctor Hospital, the United States Supreme Court held an employer liable for the biased actions of lower-level supervisors. Using a cat’s paw theory, the Court found employers may be liable for discrimination when managers with improper motives influence – but do not make – the ultimate employment decisions. Please refer to our previous article for additional background on the Staub case. Although the Court’s holding was expressly limited to the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), Staub opened the door for the cat’s paw theory to be extended to other types of discrimination cases.

The U.S. Court of Appeals for the Tenth Circuit (which covers the states of Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming) recently applied the cat’s paw theory in a case under the Age Discrimination in Employment Act (ADEA). Simmons v. Sykes Enterprises, Inc., No. 09-1558 (June 2, 2011). The ADEA protects individuals over the age of forty from discrimination based on age.

Simmons was in her early sixties and worked as a technician/assistant in Sykes Enterprises’ human resources department. Simmons had access to confidential information, which she was required to keep secret. Simmons was terminated, along with a 23-year-old employee, after an internal investigation revealed the two had disclosed confidential medical information.

Simmons sued Sykes Enterprises under the ADEA. Simmons claimed that her direct supervisor and others had commented about her age, both to her and to co-workers. Simmons alleged that the perpetrators of these ageist remarks participated in the investigation that ultimately caused an upper-level manager to fire her, thus invoking a cat’s paw theory.

The trial court granted summary judgment for the employer, finding that Simmons did not prove that the employer’s reason for termination was a pretext for age discrimination. On appeal, the Tenth Circuit applied the cat’s paw theory, but still upheld the verdict for the employer. The appellate court examined whether the Site Director and the HR Supervisor, who participated in the investigation, had discriminatory motives, and, if so, whether their bias caused her termination. The court found Simmons could not show that “but for” the managers’ bias, she would not have been fired.

The Court of Appeals listed useful examples of supervisor actions that could trigger ADEA liability under a cat’s paw theory:

Liable:

• A biased supervisor falsely reports the employee violated the company’s policies, which in turn leads to an investigation supported by the same supervisor and eventual termination of the employee.

• A biased supervisor writes a series of unfavorable performance reviews which, when brought to the attention of the final decision-marker, provoke disciplinary action against the employee.

Not liable:

• A violation of company policy is reported through channels independent of the biased supervisor.

• An investigation, independent of the biased supervisor’s influence, brings to light unbiased reasons to terminated employment.

Please refer to our previous article for practical steps every employer can take to minimize exposure. If you have any questions about the information in this posting please contact the Foster Pepper Employment and Labor Relations Practice Group.