Gendered expectations frequently affect a male subordinate’s acceptance of constructive criticism from his supervisor when the supervisor happens to be woman.
Females in leadership positions have hurdles to overcome that males do not experience. Some males consciously or otherwise, do not take the opinions of a female seriously and resent it when their work is criticized by a woman; they feel she is not qualified to render such an opinion. Some male subordinates tend to dismiss the competence of their female supervisor if she gives him poor performance evaluations or places him on a PIP. Such male subordinates may attempt to discredit the competence of the female supervisor in retaliation for the female leader’s negative feedback of his work. Such a disgruntled discriminatory worker may go over his supervisor’s head, to lodge a verbal or written bogus complaint to her supervisor, that the female is incompetent, unfair, breaking the law, or that she should be fired.
An employer may be held liable for illegal employment discrimination based on the discriminatory animus of an employee who influenced the decisionmaker to fire the employee, even when the employee with discriminatory animus himself lacked the authority to make the ultimate termination decision.
This behind-the scenes-bashing of the female supervisor may not even be in response to receiving any negative feedback by his female supervisor. He may not have received any negative feedback. A sexist male simply may not want to have a female boss telling them what to do. He will attempt to discredit her to upper-level management, hoping she will be terminated and he will be free of having a female boss. Such acts are illegal sex discrimination in violation of the NJLAD. If such an upper-level manager does fire the woman because he was influenced by the discriminatory animus of the other worker, the company can be held liable, even when the person with authority, who made the actual termination decision, has no discriminatory bias against females whatsoever.
The United States Supreme Court in 2011 determined that, “an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make the ultimate decision.” Staub v. Proctor Hosp., 562 U.S. 411, 413 (2011). This seminal US Supreme Court case discussed the “cat’s paw” theory of liability.
When the adverse action, i.e., termination, is the intended consequence of that agent’s, i.e., employee’s, discriminatory conduct, the company is not shielded from liability.
To read more about “Cat’s Paw” liability in the Straub case, click on “My Co-workers are Racist, but My Boss Isn’t, Cat’s Paw Liability.”
The Straub Court stated, “Animus and responsibility for the adverse action can both be attributed to the earlier agent if the adverse action is the intended consequence of that agent’s discriminatory conduct. So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable . . ....the “exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm.”
While holding a company liable for the discriminatory animus of a lower employee who is not the termination decisionmaker goes under various names such as “cat’s paw” or “subordinate bias”, it has been recognized by New Jersey courts and Federal courts in our jurisdiction applying New Jersey law have likewise followed this analysis.
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 sexist bias but is without formal power/authority to materially alter the terms and conditions of a plaintiff's employment, exerts influence for sexist reasons over a manager, supervisor or other employee who does have such formal power/authority, the actions of the sexist 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.
Although still controversial, a “Cat’s Paw” theory may 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.
Do Not Sit on Your Rights, or You May Lose the Right to Prevail in a Lawsuit
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