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Saturday, January 14, 2017

Cats Paw theory of EEO liability (employment discrimination)

I am in the middle of a case with the Department of Defense (DoD), and it's a rather interesting fact pattern that I thought I would share. In this instance, my client is alleging that a team lead, not his supervisor, was the individual who was discriminating against him. The Government has responded that my client's team lead was not a management official, and could not have caused a discriminatory environment (racial and national origin) because he was not in a position to oversee or make employment determinations regarding my client. Who's right?

To understand the issue, it is important to understand whether management listened to the team lead when it made decisions regarding my client. IF management based its decisions on the team lead's comments, independent of any research on their part, my client has a case. But, I get ahead of myself. All EEO cases start with a basic analysis of whether some action was taken against the client which violates equal employment laws. In this case, because it is federal, the law in question is 42 USC §2000e. Specific sections include:
Retaliation: 42 U.S.C. §2000e-3(a)
because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Prohibition against government discrimination: 42 U.S.C. §2000e-16(a)
All personnel actions affecting employees or applicants for employment...shall be made free from any discrimination based on race, color, religion, sex, or national origin.

Once an analysis is done to determine if your client suffered some kind of adverse action based on one of the aforementioned classifications (note, there are others including failure to provide a reasonable accommodation, violation of the ADEA, etc. -- this is just a sample related to racial and national origin discrimination. Read the regs!), you need to determine who did the discriminatory actions. If management took adverse action, then you need to show it was based on an illegal premise. This "prima facia" showing (i.e. your client is protected, and some negative action was taken against them) is the initial launching point for discrimination lawsuits, and is explained in McDonald Douglas v. Green.

But what happens if your employer comes back and states that the decision maker never violated any rules or regulations, and the discriminatory conduct was done by an associate of your client? Is the employer still responsible? They are if the conduct was the basis for the employment action taken by the employer. By way of example: Suppose your client's supervisor sends your black client and a white co-worker on an assignment. While on the assignment, the co-worker tells your client that blacks can't do this job well, and usually the customers don't like blacks. Later, when your client and the co-worker return, the co-worker tells your client's supervisor that your client did a terrible job and was a bad fit for this type of work. The supervisor then fires your client.

In this example, the supervisor did not say or do anything discriminatory, and the firing itself was compliant with at-will employment standards. Yet, if you can show that the supervisor relied on the discriminatory animus of the co-worker, the co-worker's discrimination will be imputed to the supervisor. Bingo -- you have a case.

Staub v. Proctor Hosp., 562 US 411 (2011) is the seminal case in this area. In this case, the authority that fired Staub was an HR Manager who relied on the reports from a supervisor working with Staub. The Court held that: "If a supervisor performs an act motivated by unmilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable." Id at 422.

Several federal courts of appeals have applied Staub to Title VII claims rather than requiring the plaintiff to show that the ultimate decision maker possessed discriminatory intent. See, Bryant v. District of Columbia, 102 A.3d 264,268 Footnote 3 (D.C. 2014).

The breadth of individuals who could influence decision making managers was expanded to include non-supervisors as well. Most recently, “[t]he Cat's Paw refers to the situation in which a biased employee, who lacks decision-making authority but has discriminatory animus, convinces a formal decision-maker to take an adverse action against a third-party for a seemingly non-discriminatory reason.” Everhart v. Bd. of Educ., 2016 U.S. Dist. LEXIS 168790, Footnote 5 (D. Md. Dec. 2, 2016)

However, there must be some evidence of reliance on the subordinate’s statements or action by the decision maker. Showing this is sufficient to raise the specter of Cat’s Paw. Lobato v. New Mexico Environment Dept., 733 F.3d 1283 (10th Cir. 2013). "An employer is not liable under a subordinate bias theory if the employer did not rely on any facts from the biased subordinate in ultimately deciding to take an adverse employment action – even if the biased subordinate first alerted the employer to the plaintiff’s misconduct." Id. at 1295

Proving a Cat's Paw theory is an excellent way to prevent a summary judgment and ensure you will get before the judge or jury. Never let the government or a private employer argue that you don't have a right to bring forth a claim because, "the manager didn't do it." Even more so in sexual harassment cases. Watch for this, and slam them with a Cat's Paw argument.

Do you have a question about employment law -- either as the wronged employee or the abused employer? We can help! 1-800-579-9864 or

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager

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