The Supreme Court has decided that the "cat's paw" theory is applicable in at least some employment cases. The theory relates to the situation where a decision maker without discriminatory animus is affected by the advice of others who have discriminatory animus. The case involved allegations of discrimination against an army reservist who claimed his immediate supervisor fabricated a disciplinary warning due to hostility to his military obligations. The employer's vice president of human resources received a report on the disciplinary warning, reviewed the employee's personnel file and terminated the employee's employment. More after the jump

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), forbids an employer to deny “employment, reemployment, retention in employment, promotion, or any benefit of employment” based on a person’s “membership” in or “obligation to perform service in a uniformed service,” 38 U. S. C. §4311(a), and provides that liability is established “if the person’s membership . . . is a motivating factor in the employer’s action,” §4311(c).

Although specifically limited to USERA, the court expressly notes the similar "motivating factor" statutory language in Title VII. Justice Scalia's opinion then discusses intentional torts, proximate cause and agency before concluding:

 It would seem the cat's paw theory likely will be found appropriate in employment discrimination contexts where "motivating factor" is sufficient to establish liability. But it would not necessarily be appropriate in situations like Gross v. FBL Financial Services, Inc. which required "but for" causation.

Justice Scalia's discussion of tort law, proximate cause and agency principles drew a dissent from Justices Alito and Thomas as being unnecessary. But Justice Scalia's discussion provides ample suggestions for future litigants to discuss liability in terms of intentional tort and agency concepts which provide fertile ground for creative litigants.

Jones v. Oklahoma City Public Schools, a Tenth Circuit opinion, is an important read for practitioners handling ADEA claims. The plaintiff had been employed since 1969 and had risen in the system to an executive position. In 20007 a new superintendent eliminated the position plaintiff held, but renamed it and filled it with a younger worker. More after the jump

Second, the Court found the McDonnell Douglas framework applied, and that circumstantial evidence may prove discrimination. The Court also rejected the curious argument the actions taken against the plaintiff we not adverse, finding the pension and vacation issues sufficient as well as the immediate loss of $5 a day in pay and the subsequent loss to $17,000 a year to be sufficiently adverse.

The Court found pretext alone can be sufficient proof of discrimination, rejecting the Defendant's pretext plus argumnet.Defendant's position that pretext alone cannot establish discrimination.