Commentary: For those interested in the origin, the term “cat’s paw” derives from a fable of a monkey who employs flattery to convince a cat to pull chestnuts out of a fire. Today the term commonly refers to a person used unwittingly or unwillingly by another to accomplish the other’s own purpose.
In the employment discrimination context, an employer can be liable under a cat’s paw theory if an employee is terminated, suspended, etc. because of the discriminatory bias of another employee even if the manager/supervisor who made the disciplinary decision had no idea about the other employee’s bias.
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A recent federal court decision, dealing with a soap opera-like set of facts, appears to have expanded the reach of potential cat’s paw liability for employers.
The employer was investigating a complaint that a former employee (Employee Z), who had been terminated for theft, was trespassing on the employer’s property. Specifically, Employee Z was driving around alone in a current employee’s truck (Employee A).
The investigator called Employee A, who was not at work, to ask if Employee Z had permission to drive the truck, and if so, why Employee Z was trespassing on employer’s property. Employee A lied to the investigator saying Employee Z did not have permission to drive the truck and his truck was actually at the repair shop.
Employee A then attempted to coerce the repair shop owner to lie for him, but the repair shop owner instead informed the investigator that Employee A had asked him to lie. The then investigator confronted Employee A about what the repair shop owner had reported, and told Employee A he was now under investigation.
The investigator also instructed Employee A to not have further contact with the owner during the investigation. Employee A then ignored that instruction and attempted to bribe the owner to change his testimony.
Employee A next alleged that the investigator, who had known and worked with Employee A for years, had falsified the report and interfered with the employer’s termination hearing process by lobbying the decision-makers for termination because of alleged racial bias. Employee A’s evidence of bias was that he allegedly heard the investigator use a highly derogatory racial slur on one occasion some three years before the investigation, the investigator told the employee he should not be permitted to have a Fraternal Order of Police sticker on his license plate because he had a criminal record, and the investigator occasionally asked the employee if he was staying out of trouble and that she was watching him.
Despite the fact that the employee never complained about the investigator’s alleged bias or conduct before the investigation and that the investigator’s alleged statements (other than the one racial slur) did not indicate a racial bias, the court determined that the comments, along with the alleged racial slur, was sufficient evidence of negative stereotypes of African Americans to support a claim that the employer could potentially be liable for race discrimination.
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The recent case is a chilling reminder that employers may face liability based on conduct by employees that are not managers or decision-makers under a cat’s paw theory. Accordingly, any suspicions of discriminatory or retaliatory impropriety pertaining to evidence or investigations that may be relied upon as a basis for a termination, demotion, suspension, or other adverse actions toward an employee should themselves be thoroughly investigated.
Leonard V. Feigel is an associate and litigation lawyer with Foley & Lardner LLP, where he advises employers in all aspects of employment law including litigation. This article originally appeared on the Foley & Lardner website.
The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.
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