Intraining, you no doubt tell supervisors that they’re not allowed to punish employees for filing discrimination complaints or testifying in other employees’ cases. But what should you do if—despite your warnings—one of those employees seems to be getting lots of disciplinary warnings?
Make sure the discipline is warranted. Don’t just take the supervisor’s word for it. Instead, talk it over with the employee and get his take on what’s happening. This approach is the only way to avoid so-called cat’s paw liability.
Recent case: Dwaine, who is black, worked as a truck mechanic for the Forest Preserve District of Cook County. Over the course of two years, his supervisor wrote him up 28 times for things like incorrectly ordering parts, taking too long to fix trucks and generally not doing his job well enough.
Dwaine saw things differently. He believed he was being treated differently because of his race and because he had participated in another employee’s discrimination complaint—and also filed one of his own.
Dwaine also believed he was being set up to fail by being assigned to the trucks in the poorest condition and being prevented from ordering parts in a timely fashion.
Some months after Dwaine filed his own discrimination complaint, his supervisor went to HR and demanded Dwaine be removed from his job as a mechanic.
Dwaine was given a choice: Take a demotion or face potential discharge. He chose the demotion and from then on had to cut grass, shovel snow and take care of landscaping tasks. The job paid almost a third less than he had been earning before.
Dwaine continued with his lawsuit. A jury concluded he had been retaliated against and ordered back pay, plus reinstatement to his former mechanic position. The district appealed.
The 7th Circuit Court of Appeals had little sympathy for the district. The court pointed out that it appeared management simply accepted the supervisor’s recommended discipline without looking into it. The court said Dwaine’s case fit the cat’s paw theory of employer liability, in which a supervisor’s intent to retaliate is transferred to the employer. Therefore, the district was liable for the boss’s retaliation. (Hicks v. Forest Preserve District of Cook County, No. 11-1124, 7th Cir., 2012)
Final note: During trial, Dwaine called to the witness stand a former supervisor who testified that Dwaine’s supervisor stated he wanted to get rid of any employees who filed lawsuits or complaints. This supervisor said he was ordered to scrutinize Dwaine’s work closely and to write him up as often as possible. It’s little wonder the jury sided with Dwaine.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- The hard truth by "Z": When employees become legal schemers
- No anguish needed to show hostile environment
- Before discharge, investigate supervisor's claims
- Use solid research to back business-necessity defense when deciding not to accommodate