If you don’t have a chance to personally observe an employee’s behavior, don’t rely solely on a supervisor’s termination recommendation. Instead, conduct an independent investigation to verify the supervisor’s claim.
Otherwise, any employment decision based on that recommendation can be tainted by the supervisor’s hidden bias.
Recent case: Cathleen Schandelmeier-Bartels, who is white, worked at a Chicago Park District summer camp. Her supervisor was black, as were some of the children attending the camp.
When a black child was suspended for misbehavior, Schandelmeier-Bartels called his guardian to pick him up. His aunt arrived and was placed in a room with the child. Schandelmeier-Bartels said she heard what sounded like hitting and a child screaming. When she investigated, she saw the aunt’s arm raised above her head, a belt looped in her hand. The crying child had a welt on his arm. Schandelmeier-Bartels told the aunt to stop, and the aunt left with the child.
Schandelmeier-Bartels then went to her supervisor and told her what she had heard and seen. The supervisor explained that what Schandelmeier-Bartels had just observed was a “cultural thing” and that black parents gave “unspoken permission” for staff to discipline black campers by grabbing them and putting them “back in line.”
Schandelmeier-Bartels objected, saying that she believed she had observed child abuse and thought she might have to report the incident. Later, she called the police, who pursued the case.
The next morning, Schandelmeier-Bartels found herself facing the aunt and her supervisor, who was furious. The supervisor went into a tirade about black culture and finally told Schandelmeier-Bartels to leave the room because she could no longer stand the sight of her.
The next day, Schandelmeier-Bartels was fired after her supervisor drafted a memo recommending her discharge. HR and another manager looked at the memo, did no further investigation and authorized the firing. Had they spoken to Schandelmeier-Bartels, she would have told them about the racial tirade.
Schandelmeier-Bartels sued, alleging race discrimination.
After a jury awarded her $200,000, the city appealed. Now the 7th Circuit Court of Appeals has upheld the jury verdict on the basis of the “cat’s paw liability” theory, in which a malicious party uses another unwitting party to accomplish his own malevolent purposes. In this case, the supervisor’s race bias illegally influenced HR to fire Schandelmeier-Bartels.
Because the Chicago Park District didn’t do an independent investigation, it became liable for the supervisor’s bias. (Schandelmeier-Bartels v. Chicago Park District, No. 09-3286, 7th Cir., 2011)
Final note: The cat’s paw theory of liability is based on an old fable in which a scheming monkey convinces an unwitting cat to fetch roasting chestnuts from a fire. The cat burns its paws while the monkey gets the chestnuts without burning himself.
In the employment law arena, the cat is the unwitting manager who is persuaded by a subordinate to accept a recommendation that is really based on illegal bias.
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