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Thursday, December 13, 2018

My Co-workers are Racist, but My Boss Isn’t, Cat’s Paw Liability

Sometimes an employee believes another employee who is racist is “gunning to get them fired” even though the racist employee himself does not have the power to hire or fire employees. When a supervisor or manager who is not racist terminates a person, the terminated employee may wonder if he could ever have valid race discrimination claim. The terminated employee may have a valid race discrimination claim if he can prove a “Cat’s Paw” theory of liability against the employer company. The employee my also have a claim for racial harassment if the employer should have known about the harassment but did nothing to correct it.

In the law of employment discrimination, the “Cat’s Paw” theory can apply when a biased co-worker who lacks decision-making power, influences the person with the formal termination-decision making authority, in a deliberate scheme to trigger another employee’s termination or other adverse employment action.

In Staub v. Proctor Hospital, the US Supreme Court employed a concept written by a 17th-century poet Jean Defendant La Fontaine in the fable The Monkey and the Cat to apply “Cat’s Paw” theory of discrimination. In the fable The Monkey and the Cat, a monkey who wants to eat chestnuts that he sees roasting on a fire, but who himself does not want to get burned by pulling the chestnuts off of the hot coals, convinces a cat to pull chestnuts from the hot fire.The cat at coaching from the monkey scoops the chestnuts from the fire one by one and burns his paw as he does so. The chestnuts go flying and the scheming monkey quickly eats all the chestnuts, leaving no chestnuts for the cat. The monkey puts the chain of events into effect by manipulating the cat, and the monkey gets what he wants, the chestnuts, without getting burned; while the unwitting cat suffers burned paws and gets no chestnuts.

In Staub, the Court held employers liable for discriminatory animus of a supervisor who is an employee of the employer but who is not the person directly responsible for making the ultimate decision to terminate an employee. The term “Cat’s Paw” is applied in employment discrimination law to refer to an employee (i.e. the cat) who is used by another employee (the monkey) to accomplish the other employee’s ( the monkey’s) purposes.

Under the “Cat’s Paw” theory of liability, where an employee who has racial bias but is without formal power/authority to materially alter the terms and conditions of a plaintiff's employment, exerts influence for racial reasons over a manager, supervisor or other employee who does have such formal power/authority, the actions of the racist employee without formal power/ authority are imputed to the employer and the employer is in violation of discrimination statutes. This nefarious influence may be exercised in many ways including supplying misinformation or failing to provide relevant information to the person making the employment decision.

A “Cat’s Paw” theory will support holding an employer vicariously liable under the New Jersey Law Against Discrimination and 42 U.S.C.S. § 1981 and 42 U.S.C.S. § 1983.

The “Cat’s Paw” theory can support individual liability for race discrimination for a co-worker or supervisor who intentionally causes a higher-up supervisor, manager or other employee with the formal power/authority to take an adverse action, such as a termination.

Cat’s Paw theory is applied in many cases of employment discrimination, not only race discrimination. In a recent case against a manufacturing company, decided November 21, 2018, the court applied “Cat’s Paw” to deny a Motion for Summary Judgment. In this matter, the Plaintiff began working for Defendant employer and alleged that a coworker sexually harassed her. The Plaintiff reported the harassment to her supervisors and later met with the employer’s vice president. The Plaintiff told her superiors that she did not know the harasser outside of work and that co-workers witnessed him harassing her. The accused co-worker denied it but stated that he and the plaintiff had previously exchanged text messages. After conducting these interviews, the vice-president claimed that he believed the Plaintiff misled him about the nature of her and the alleged harasser’s relationship, and he ultimately decided to terminate her.

The Plaintiff filed a charge of discrimination against the employer claiming that the employer terminated her in retaliation for reporting the sexual harassment. The employer filed a motion for summary judgment for the court decide the case as a matter of law. (Summary Judgment is granted when there is no genuine issue as to any material fact, which issue  as to any material fact must be decided by a jury and not the Court.) The vice-president stated that after he interviewed the accused, he found that the plaintiff was no longer credible and that he believed she had misled him by telling him that she did not associate with the accused outside of work.

Another worker testified that she and the vice-president discussed what action he would take, and that she gave him her opinion on whether the plaintiff should be fired.   The court stated, “[W]hen the person conducting the final review serves as the 'cat's paw' of those who were acting from retaliatory motives, the causal link between the protected activity and adverse employment action remains intact." ....... "The degree to which [the final decisionmaker's] decisions were based on his own independent investigation is a question of fact…… ."  The Court applied “Cat’s Paw” and denied the Employer’s motion and found there was sufficient evidence to create a factual dispute about whether the reasons for firing the Plaintiff were false.

If You Are Thinking of Simply Resigning

If you are thinking of simply resigning because of race discrimination in your workplace and/or because you notified your employer about racial harassment and no action was taken, you should contact an attorney experienced in employment law before you do so, to explore your legal options in the safest way for you.

What You Can Do

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were subjected to racial harassment and retaliation in the workplace and/or were fired. If you have experienced racism at work, or if you reported it and no action was taken, if you are thinking of resigning, or think you will be fired, or have been fired, it is important that you consult with an attorney who is experienced in discrimination.

If you are being subjected to workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in southern, central, western and northern NJ to meet with clients.

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