Now that the U.S. Supreme Court has endorsed the theory of “subordinate bias” or “cat’s paw” liability in a Uniform Services Employment and Reemployment Rights Act (USERRA) case, the Tenth Circuit has extended the same theory to Age Discrimination in Employment Act (ADEA) cases. In Simmons v. Sykes Enters. Inc. (10th Cir., No 09-1558, 6/2/11), the court stated that this theory of liability can apply equally to all types of employment discrimination cases. However, unlike cases arising under USERRA or Title VII, plaintiffs claiming under the ADEA must also show that age was the “but for” cause of their termination. In plain English, this means that “but for” the immediate supervisor’s animus toward the employee due to the employee’s age, the employer would not have terminated the employee’s employment.
Without the additional causation requirement, a plaintiff would only have to prove that the supervisor’s animus was somehow related to termination of the plaintiff’s employment. Under the ADEA, plaintiffs must also show that it was necessary in bringing about the termination. In the Simmons case, the court did not find the employers liable because an independent source reported the plaintiff’s alleged violation of company policy and the allegedly biased supervisors did not initiate the investigation. In addition, the allegedly biased supervisors did not have sole responsibility for the decision to terminate. As a result, even if plaintiff’s age had a direct relationship to the termination, it was not the determinative cause of the employer’s final decision to terminate the employment relationship, and this was enough for the Tenth Circuit to uphold dismissal of the case in favor of the employer.
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