In our post on April 30, 2012, we highlighted the EEOC’s recent guidance on the use of criminal history records to discriminate against job applicants. To read our original post click here. As businesses large and small now look to make sense of the new guidance, and to tailor appropriate policies, many are discovering that they may have been unknowingly violating the law. For some interesting thoughts on the EEOC’s Guidance on the use of criminal history records under Title VII from the perspective of small businesses, check out this well-sourced post by New York Times reporter Robb Mandelbaum and his related article.
The Seventh Circuit has held that an employee with an unlawful retaliatory motive may be individually liable under § 1981 for causing an employer to retaliate against a co-worker. Section § 1981 prohibits racial discrimination in contractual relations and has been held applicable to employment matters.
In Smith v. Bray, the Seventh Circuit tackled this issue of first impression by looking to recent Supreme Court precedent endorsing the “cat’s paw” theory of employer liability under Title VII and the holdings of five circuits that the “cat’s paw” theory supports individual liability under § 1983, which provides redress for individuals whose federally protected rights have been violated. As such, the Court held that “recognizing cat’s paw liability under § 1981 is consistent with our parallel approaches to these [non-discrimination] statutes.”
The “cat’s paw” theory, which was recognized by the Supreme Court in Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011), says that an employer may be liable for discrimination under Title VII where an adverse employment decision is based on a biased or improperly motivated recommendation by a subordinate or supervisor. “Cat’s paw” liability may be established where a plaintiff can show that an employee with a discriminatory purpose or bias provided information that may have affected an adverse action. The theory comes from a French fable wherein a monkey (the biased employee) convinces a cat (the employer) to pull chestnuts from a hot fire. The cat’s paw is then burned and the monkey enjoys the fruits of the cat’s labor. In holding that the “cat’s paw” theory can support individual liability under § 1981, the court inquired, “Why should the ‘hapless cat’ (or at least the employer) get burned but not the malicious ‘monkey’?”
This decision is noteworthy not just because it endorses individual liability under § 1981, but also because it provides an arrow in a plaintiff’s quiver which is not available under Title VII as most circuits have held that an individual cannot be liable under Title VII. As far as race discrimination is concerned, however, Smith v. Bray opens the door for suits against supervisors and co-workers under a “cat’s paw” theory.
Reversing 17 years of circuit court precedent, the Sixth Circuit Court of Appeals, in an en banc decision, held that the Americans with Disabilities Act (“ADA”) requires a plaintiff to show that his or her claimed disability was a “but-for” cause for the employer’s adverse employment decision. The decision in Lewis v. Humboldt Acquisition Corp., Case No. 09-6381 (6th Cir., May 25, 2012), marks the Sixth Circuit’s first decision analyzing the ADA’s causation standard since the Supreme Court’s decision in Gross v. FBL Financial Services Inc., 557 U.S. 167 (2009). In that case, the Supreme Court held that a plaintiff must show that age was a “but-for” cause for the adverse action, pursuant to the Age Discrimination in Employment Act’s (“ADEA”) “because of” language, and further, the court repudiated the application of a “mixed-motives” analysis under the ADEA. In holding that the ADA requires a “but-for” showing based on the ADA’s pre-2008 language that prohibited discrimination “because of” an employee’s disability, the Sixth Circuit agreed with the Seventh Circuit’s decision in Serwatka v. Rockwell Automation Inc., 591 F.3d 957 (7th Cir. 2010), the only other circuit court decision addressing the issue since Gross v. FBL.
In so holding, the Sixth Circuit overruled its precedent requiring a plaintiff to show that his or her disability was the “sole reason” for the adverse employment action. The court had previously held that such a standard applied under the ADA based on its interpretation of the Rehabilitation Act of 1973. While holding that a “but-for” analysis applies under the ADA, the Sixth Circuit also addressed the plaintiff’s arguments in favor of a “motivating factor” analysis applicable under Title VII. Holding that each federal anti-discrimination statute must be analyzed based upon its own text, the court held that the statutory texts and histories of Title VII and the ADA did not justify borrowing Title VII’s “mixed-motives” analysis for ADA purposes.
The Sixth Circuit’s decision is based upon the ADA’s pre-ADA Amendments Act of 2008 (“ADAAA”) language. The ADAAA now prohibits discrimination “on the basis of disability.” As such, the Sixth Circuit’s holding is limited to cases governed by the pre-2008 statute and any statements regarding the causation standard under the ADA are dicta for cases brought under the ADAAA.