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The Cat’s Paw In Federal And New Jersey Discrimination Cases

The United States Supreme Court recently ruled that a fired employee can sue his employer for the harm he suffered from “cat’s paw discrimination” because of his membership in the Army Reserve. Federal and state courts have ruled that “cat’s paw” liability applies in a wide variety of other New Jersey discrimination.

The Cat’s Paw.

In Aesop’s Fables, a monkey convinces a cat to pull chestnuts from a fire. The monkey then eats them, leaving the cat with burnt paws and no chestnuts. A “cat’s paw” case happens when a decisionmaker has no intent to discriminate herself, but fires or penalizes in reliance on another employee’s input which was motivated by discrimination. It is sometimes been called “subordinate bias” because it holds the employer responsible for the discrimination or retaliation of someone below the decisionmaker.

The Supreme Court and Cat’s Paw Discrimination Against Members of the Armed Forces.

The United States Supreme Court recently allowed a hospital employee who was fired because of his Army Reserve service to sue for “cats paw” discrimination.

Vincent Staub was an Army Reservist, required to drill one weekend per month and several weeks during the summer. He was also employed by Proctor Hospital as an angiography technician. Janice Mulally and Michael Korenchuk, Staub’s first and second level supervisors, disliked Staub’s military service, which they called “a bunch of smoking and joking and a waste of the taxpayers’ money.” Mulally told co-workers she wanted “to get rid of him.” They put Staub on a corrective action plan, apparently for no justifiable infraction, and then alleged a violation which they used to recommend that their boss, Linda Buck, fire Staub. Buck fired Staub.

Staub claimed that he was fired in retaliation for his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994. The Act prohibits discrimination in employment because of a service member’s military obligation, including denial of hiring, promotion, reemployment, firing, suspension, demotion, or any benefit. Military service cannot be a “motivating factor in the decision.”

Staub didn’t claim Buck intended to discriminate. Rather, he maintained that Mulally and Korenchuk did, and their actions caused him to be fired. He claimed that their unfavorable entries in his personnel record were made because of discrimination, and they were the “motivating factor” which caused him to be fired. Proctor Hospital argued it could not be held liable because Buck, who fired Staub, had no discriminatory intent.

The Supreme Court rejected the Hospital’s defense. It held that because the ultimate decision maker was relying, even though innocently, on the discriminatory actions of the hospital’s agents, the hospital could not escape responsibility. To rule otherwise, the Supreme Court explained, would allow discrimination designed to produce the result to go unpunished.

New Jersey’s Federal Court’s and Other Instances of Cat’s Paw Discrimination.

Since the Staub decision, New Jersey’s Federal Appeals Court decided two cases extending the “cat’s paw” doctrine to other anti-discrimination laws.
In the first, the United States Court of Appeals for the Third Circuit extended “cat’s paw” liability to, Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment because of an employee’s “race, color, religion, sex, or national origin,” and retaliation because of complaints of discrimination for prohibited reasons. In that case, the employee was a Philadelphia police officer fired because of complaints about discrimination against African-Americans.

In the second case, the Third Circuit found that the employer could be liable under the “cat’s paw” theory for violating the Age Discrimination in Employment Act (“ADEA”) during a layoff or RIF (“reduction in force”) where all the employees in the plaintiff’s position fifty five years old or older were let go, and all those younger were retained.

Indeed, the Third Circuit explained that the principles of subordinate bias of the cat’s paw theory “apply equally to all types of employment discrimination.”

New Jersey Law and Cat’s Paw Liability

Shortly after the Staub decision, a case involving New Jersey’s anit-discrimination and “whistleblower” laws came before the Appellate Division of New Jersey’s Superior Court, in what appeared to be its first review of “cat’s paw” discrimination. In that case, the appeals court indicated that “cat’s paw” liability should apply to both New Jersey’s Conscientious Employee Protection Act (the “Whistleblower” Act) and New Jersey’s Law Against Discrimination, and that it believed New Jersey’s Supreme Court would adopt it. The Appellate Division also indicated that it was confident that it would also apply to New Jersey’s Law Against Discrimination.

Bottom Line for New Jersey Employees and Employers: New Jersey Employers Are Responsible for the Discrimination of All Their Employees.

These cases put employers on notice that they are responsible for the consequences of the discrimination and retaliation of all their employees. They cannot shield themselves by conducting an “investigation” leading to firing or other adverse action if the evidence itself was tainted by discrimination.

This is as it should be. This is a country dedicated to judging people solely on their merits, so discrimination thwarts our core values. Moreover, it cannot be claimed that these cases harm to employers — any organization, governmental or private sector, with goals of profit or efficiency, must be committed to judging employees by merit, which means that eliminating discrimination and retaliation is in their own interest.

McLaughlin & Nardi’s attorneys are experienced in representing both New Jersey employees and employers in whistleblower, retaliation and discrimination claims, and all aspects of their employment relationship, from hiring and firing, to litigation and arbitration. To learn more about what we can do to help, please visit our website, or contact one of our lawyers at or (973) 890-0004.

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