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Beware the cat’s paw: How innocent decisions create liability

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in Employment Law,Firing,FMLA Guidelines,HR Management,Human Resources,Leaders & Managers,Management Training,Performance Reviews

It comes as a bolt out of the blue: The Florida Commission on Human Relations (FCHR) notifies you that there’s “reasonable cause” to believe retaliation was the reason a female employee lost out on a promotion to a male co-worker.

But it was a clean promotion process! HR and top management made the decision after reviewing the candidates’ files, performance evaluations and disciplinary records.

Both employees were interviewed. The man got the job—in part because of a glowing recommendation from the manager who supervised both candidates.

How could the FCHR conclude bias or retaliation was a factor? Back up to the manager’s recommendation.

It turns out, the boss had it in for the woman because she had once filed a discrimination complaint against him when they both worked for another company. His strong recommendation in the man’s favor—driven by retribution—tainted an otherwise neutral decision-making process. And that’s retaliation.

When cat’s paw gets burned

This hypothetical illustrates what’s known as the “cat’s paw” doctrine, in which a malicious party uses another unwitting party to accomplish his own malevolent purposes.

The term “cat’s paw” comes from a 1679 French fable, The Monkey and the Cat, in which a selfish monkey persuades an unwitting cat to pull roasting chestnuts from a fire. The cat burns its paw while retrieving the chestnuts … which the monkey promptly gobbles up, leaving none for the cat.

In terms of employment law, the cat’s paw theory of liability draws a causal connection between the discriminatory or retaliatory intent of one person and the seemingly neutral acts of another.

In our hypothetical case, the boss is the monkey, while HR and top management are the unwitting cats. And they’re getting burned by relying on the boss’s biased recommendation without independently checking to see whether there might be some ulterior—and illegal—motive.

Cat’s paw cases put employers in a bind. Courts often let such cases go to trial, trusting a jury to sort out whether the employer should be held liable for retaliation or discrimination.

However, employers can win cat’s paw cases—if they can prove that the employment decision was based on a thorough and independent evaluation. If they can do that, courts may decide that the decision wasn’t tainted by the malicious party’s bias. And that means no unlawful discrimination or retaliation took place.

Recent cat’s paw cases

Two recent cases illustrate how the cat’s paw can play out in court.

• In Dixon v. Odwalla, Inc. (Case No. 08-61593-CIV, SD FL, 2010), the court found that the employee made a prima facie retaliation claim.

The employee had been accused of falsifying time records. When they investigated the accusation, the HR vice president and the ethics code supervisor both knew the employee had brought a pending EEOC charge against the company.

Following their investigation, the HR and ethics officials issued a recommendation to upper management: The employee should be discharged. The company indeed fired the employee, based solely on the recommendation.

But the court found that the company had simply “rubber stamped” the recommendation with no further independent investigation. The court assumed the HR and ethics officials had retaliatory motives and imputed those motives to the company as a cat’s paw. Thus the employee met his initial burden of demonstrating a claim of retaliation. (The employer eventually had the case dismissed after it proved legitimate, nonpretextual and nonretaliatory reasons for the discharge.)

Hyde v. KB Home, Inc. (Case No. 09-11755, 11th Cir., 2009) offers a different outcome. In that case, the 11th Circuit Court of Appeals ruled that a female employee did not establish a cat’s paw theory of retaliatory discharge under the FMLA.

Although there was evidence that the employee’s supervisor may have been biased against her and given her some undesirable assignments because she had taken FMLA leave, there was no evidence that the supervisor was involved in the decision to terminate her as part of a reduction in force. The evidence showed that the decision-makers performed their own independent RIF review, analysis and lay-off determinations.

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