Let’s start with the cats. The Supreme Court of the United States heard oral argument recently in Staub v. Proctor Hospital, a case involving an employer’s “cat’s paw” liability, a theory derived from 17th Century French tale about a conniving monkey who convinces a cat to knock chestnuts from a fire to the monkey; the cat uses her paw to do so. Translated to employment law, the theory is that a manager desiring to terminate an employee for discriminatory reasons (the monkey) manipulates another manager who does not have a discriminatory motive (the cat’s paw) to make the decision to terminate the employee. Absent a discriminatory motive, the termination could not be unlawful, the employer argues. In Staub, the plaintiff claimed his termination violated USERRA because his supervisor had an anti-military bias but a hospital administrator without any such bias—the cat’s paw–made the termination decision. In many ADA termination cases, the employer’s defense is that the decider did not know the plaintiff had a disability—although other managers may have known–so it could not possibly have terminated the employee for a discriminatory reason. The Staub decision will likely affect the scope of this defense.
Now the dogs. The ADA prohibits discrimination against dogs, service dog breeds to be more specific. Some cities have outlawed certain breeds based on safety concerns, whether real or perceived. The U.S. Department of Justice’s recently issued final rule adopting accessibility standards states that the DOJ “does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks” when assessing the rights of disabled individuals to use service dogs. Such deference would limit the rights of disabled individuals who use service animals “based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others,” according to the DOJ.