Total Articles: 4
Clarifying the Cat's Paw: Just how independent does "independent" have to be?
Earlier in the year, the Supreme Court unanimously held in a landmark decision that employers could be liable for employment decisions influenced by managers or supervisors who had unlawful motives. Although the Court indicated that an independent review could help shield the employer from so-called "cat's paw" liability, the opinion did little to define what type of internal review or investigation would cure the problem.
3d Cir. Issues Decision on Cat's-Paw Theory
In McKenna v. City of Philadelphia, No. 09-3567 (3d Cir. Aug.17, 2011), the Third Circuit affirmed a jury award in favor of a fired Caucasian Philadelphia police officer, who claimed he had been retaliated against for complaining to his supervisor about racially discriminatory treatment of minority officers. The City claimed that even if the supervisor’s conduct was retaliatory, the City was insulated from liability because the termination decision was made by an independent Police Board of Inquiry (“PBI”) after a hearing.
Employer Can Avoid Liability by Conducting Independent Investigation of Allegations Made by Biased Supervisor Against Minority Subordinate.
Under anti-discrimination statutes, an employee can bring a retaliation claim under a theory of liability referred to as a subordinate bias theory also referred to as the cats paw theory - in which the employee can claim that an adverse action ostensibly brought by a high-level company decision-maker was, in actuality, based upon the biased recommendation of a lower level manager or supervisor. The Supreme Court implicitly approved this rationale in Reeves v. Sanderson Plumbing Products in 2000, a case in which a company president followed a recommendation of the director of manufacturing (who, coincidentally, was also her husband) to discharge an employee for falsifying company payroll records. Because evidence existed to show that the director of manufacturing had generated misleading data to justify the termination, and that he was the actual decision-maker, the company was not entitled to judgment as a matter of law against the employee.
Unchecked supervisor sends employer to trial
Imagine you have a supervisor who makes a careless remark or lets his anger get the best of him when disciplining or firing an employee and exposes you to a discrimination claim. Further imagine your frustration in knowing that the company had good reasons for the decision regardless of the supervisors behavior that might suggest an improper motive to a judge or jury. Is all lost?
