Sometimes an employee believes another co-worker is trying to get them fired. When a supervisor or manager, terminates an employee, the terminated employee may wonder if she he could ever have valid discrimination claim if the supervisor or manager himself does not appear to have any personal discriminatory bias. 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. This legal analysis of employer liability goes under various names such as “cat’s paw” or “subordinate bias”. To learn more about “cat’s paw”, read my article of 12/31/2012, How 17th century fable of a monkey and a cat is applied in employment discrimination lawsuit against UMDNJ.
An employer may be held liable for employment discrimination against an employee based on the discriminatory animus of another employee who influenced, but did not make the ultimate decision. Staub v. Proctor Hosp., 562 U.S. 411 (2011).
Sometimes am employee will sense or know that a co-worker is discriminatory and attempting to get her/him fired. The co-worker may resent or harass the employee because of her/his sex, race, sexual orientation, age or other legally protected characteristic and have a discriminatory bias against her/him. Also, unfortunately some workers resent working with those who are pregnant or a have a disability because they feel it is unfair that the employer makes an accommodation for that employee’s pregnancy or disability to allow them to keep working, but the accommodation is not equally extended to all non-disabled employees.
A co-worker without the authority to fire another worker may bad-mouth, complain about, or disparage the worker to the boss who is the ultimate decision-maker, the person who does have authority to terminate the worker, in an attempt to get the employee fired. The ultimate decision-maker, the person with the authority to terminate, demote, or take another “adverse action” against the disparaged worker, may not themselves have any personal discriminatory animus toward the disparaged worker, and they may not be aware that the co-worker’s disparagement is fueled by a discriminatory bias.
However, if the ultimate decision-maker took an adverse action against the worker because of the co-worker’s acts or words which were motivated by an illegal discriminatory bias, the employer may be held liable for employment discrimination, even if the actual decision-maker had no bias, according to the US Supreme Court and New Jersey Law.
The United States Supreme Court in Staub v. Proctor Hosp., 562 U.S. 411, 413 (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.”
Ways in Which a Worker with Subordinate Bias May Attempt to Get a Worker Terminated
The worker with “subordinate bias” accomplishes his discriminatory goals by making false claims about the employee to the supervisor or those close to the supervisor, bad-mouthing and complaining about her/his work ethics or character.
The Worker with “Subordinate Bias” Also Accomplishes His Discriminatory Goals if Misusing the Authority Granted to Him by the Employer.
The worker with “subordinate bias” also accomplishes his discriminatory goals if misusing the authority granted to him by the employer, for example:
The authority to monitor performance,
The authority to write performance evaluations,
The authority to monitor performance report disciplinary infractions,
The authority to recommend employment actions to superiors.
If the adverse action such as a termination is the intended consequence of the co-worker’s or employer’s agent’s discriminatory animus and conduct, then the both animus and responsibility for the adverse action are imputed to the ultimate decision-maker who makes the termination decision. When a co-worker’s discriminatory bias is the proximate cause of the harm, it makes the employer liable both for the harm and for the illegal discrimination although the boss, the ultimate decision-maker, with authority to terminate or take another adverse action against the employee, has no bias himself.
To learn more about “subordinate bias” or “cat’s paw” in a US Supreme Court case, read my article of 12/31/2012, discussing how a 17th century fable of a monkey and a cat is applied in an employment discrimination lawsuit.
This subordinate bias has been repeatedly recognized by New Jersey courts. In 2008, the New Jersey Appellate Division in Kwiatkowski v. Merrill Lynch, 2008 N.J. Super. Unpub. LEXIS 3023, stated, “The theory of "subordinate bias" has been recognized in federal employment discrimination cases. This theory comes into play when an ‘allegedly biased subordinate accomplishes his discriminatory goals by misusing the authority granted to him by the employer-for example, the authority to monitor performance, report disciplinary infractions, and recommend employment actions.’”
The Kwiatkowski Court recognized that a company's organizational chart does not always accurately reflect its decision-making process.
Don’t Sit on Your Rights
If you are an employee who is experiencing discrimination, don’t sit on your rights. If you think you are being discriminated against because of your age, race, disability, sex, color, ethnic origin, religion, sexual orientation or other protected characteristic, you should contact this office today for a free consultation. I have represented numerous private and public employees who were discriminated against, and I was successful in recovering multiple six-figure financial compensation for their emotional pain and suffering, and moneys for lost wages, both for past lost wages and projected future lost wages.
If you resign, you may lose right to prevail in a lawsuit.
In many instances of discrimination and retaliation, if you resign, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of resigning, or think you will be fired, or have been fired, you should contact this office immediately for a free consultation to discuss your options in the safest way for you.
If you are being subjected to such unlawful workplace discrimination or believe you are being pushed out of your job, contact Hope A. Lang, Attorney at Law today for a free consultation. I accept discrimination and whistleblower cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.