The Zone of Interest and the Cat’s Paw: Two Employment Based U.S. Supreme Court Decisions

Article By: David M. Cuppage

Two recent U.S. Supreme Court decisions will have an immediate impact on employee relations and employment litigation. These decisions expand the rights of employees who are the subject of employer retaliation and/or discrimination while placing additional responsibilities on employers in making management based decisions.

First, in Thompson v. North American Stainless, LP, 562 U.S. ___ (2011), the Supreme Court held that an employer violates the anti-retaliation provisions of Title VII by discharging an employee because the employee's fiancée filed a charge of discrimination with the Equal Employment Opportunity Commission. The Supreme Court noted that Title VII's anti-retaliation provision must be construed to cover a broad range of employer retaliatory conduct. Title VII's anti-retaliation provision, the Court noted, prohibits any employer action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." There is no fixed class of relationships for which the anti-retaliation provision might apply. However, close family members will almost always meet the standard, while mere acquaintances will almost never meet the standard. Those individuals with standing to sue under Title VII's anti-retaliation provision must fall within the "zone of interest." The zone of interest enables suit by any plaintiff with an interest arguably sought to be protected by Title VII, while excluding plaintiffs who might technically be injured but whose interests are unrelated to Title VII. Where an employer intends to punish an employee for invoking rights under Title VII by intentionally (as opposed to accidentally) hurting another employee, the injured employee falls within the zone of interests sought to be protected.

Next, in Staub v. Proctor Hospital, 562 U.S. ____ (2011), the Supreme Court held that an employer may be held liable for employment discrimination based on the discriminatory animus of a supervisory employee who influenced, but did not make, the ultimate employment decision. The Supreme Court observed that an employer's authority to reward, punish or dismiss is often allocated among multiple agents or supervisors and that the person who ultimately makes the decision frequently does so on the basis of performance assessments by other supervisors. A "cats paw" case results when an employee seeks to hold the employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision but whose discriminatory performance assessment causes the adverse decision. The Supreme Court held that if a supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.

To protect the company, the decision maker must ultimately undertake an independent investigation. If the decision maker's investigation results in an adverse action for reasons unrelated to the supervisor's original biased report, then the employer will not be liable. But the supervisor's biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified. Thus, the decision maker must account for the possibility of biased supervisory reports.

Collectively, these decisions provide greater protection for employees from retaliatory and discriminatory practices, while placing greater burdens on employers to ensure compliance by all supervisors including the ultimate decision maker with employment discrimination laws. If you require representation in employment matters or disputes, please contact David M. Cuppage or Scott D. Simpkins (216) 621-8484.