In the 17th century, writer Jean de La Fontaine penned a fable about a clever monkey who persuaded a cat to fetch chestnuts from a hot fire. The cat’s paws got burned, but the monkey got what he wanted: fresh roasted snacks.

Now the U.S. Supreme Court is set to decide whether employers can be held liable under the so-called “cat’s paw” theory in a job bias suit in which the decision-maker was allegedly persuaded by the animus of a subordinate supervisor to fire an employee.

The plaintiff in Staub v. Proctor Hospital, Vincent Staub, was a medical equipment technologist and member of the Army Reserves. When he was terminated from his hospital job, he sued, alleging violation of the Uniformed Services Employment and Reemployment Rights Act of 1994, which bars discrimination based on military service.

Staub claimed he was fired because of his obligation to report for military drills on weekends and a three-month leave he took when he was called for active duty.

At trial, he presented evidence that his immediate supervisors exhibited animus toward his military status and, as a result, reprimanded him harshly for minor infractions.

The hospital countered by arguing that the ultimate decision-maker on Staub’s employment, the vice president of human resources, had no such bias and was unaware of the subordinate supervisors’ motivation when she made the decision to terminate Staub.

A jury ruled in Staub’s favor, but the 7th Circuit reversed, holding that there was insufficient evidence that the biased actions of the supervisors exerted a “singular influence” over the human resources official’s decision to terminate.

The Supreme Court granted review.

‘Very unattractive rule’

Although the Staub case deals with the “cat’s paw” claim in the context of USERRA, the court has agreed to take up the issue in other contexts, only to have the cases settle before it could reach a ruling. As a result, the justices could be poised to hand down a ruling that has broader application.

At oral arguments recently, Eric Schnapper, a professor at the University of Washington School of Law in Seattle, argued on Staub’s behalf that the court should follow the principles of agency law and hold that an employer cannot avoid liability when the decision-maker essentially rubber-stamps the discriminatory actions of another.

“Congress legislates against a background of agency law and is presumed to have intended agency principles to govern that kind of question” in USERRA actions, Schnapper said.

Justice Samuel Alito Jr. said the argument does not comport with the language of the statute.

“It has to be a ‘motivating factor’ in the decision to discharge,” Alito said, referring to the law’s language. “The natural reading of that is that it looks at the motivation of the person who makes the decision to discharge. I’m not suggesting that’s the right rule. That’s a very unattractive rule. But the rule that you have suggested is also very unattractive.”

Eric. D. Miller, an assistant to the solicitor general arguing as amicus on the employee’s behalf, said the 7th Circuit’s “singular responsibility” requirement was inconsistent with the language of the statute.

“It is incompatible with the statutory definition of ‘employer,’ which includes not just the ultimate decision-maker, but any person to whom the employer has delegated the performance of significant employment responsibilities,” Miller said.

‘Second bite of the apple’

Roy G. Davis of Davis & Campbell in Peoria, Ill., represented the hospital. He argued that the fact the plaintiff did not prove animus on the part of the decision-maker makes the case an easy one.

“Applying ordinary tort-related vicarious liability rules, Staub’s case against Proctor Hospital would end right here,” Davis said. “The ‘cat’s paw’ doctrine gives Staub and all other plaintiffs like him a second bite at the apple.”

Justice Sonia Sotomayor wondered about the practicality of a rule that prohibits liability for decision-makers who rely on factors motivated by bias.

“[Your argument] assumes that the employment decision is solely hers,” Sotomayor said of the human resources official. “She’s not acting in a vacuum. She’s acting on information that has been supplied to her by people who are authorized to supply that to her in the employment context.”

But Davis said that allowing “cat’s paw” liability would hand parties and fact-finders the insurmountable task of second-guessing the motives of every subordinate who disciplined a worker.

“That would lead to a never-ending chain of looking backwards,” Davis said.

Justice Elena Kagan did not take part in consideration of the case. A ruling is expected later this term.