When women and minority supervisors, and other protected classes are maligned by their subordinate employees to those higher in authority over the supervisor, it could affect the supervisor’s employment status. Supervisors are not insulated from the effects of illegal prejudice and bias of employees who are subordinate to them in authority.
When Biased Animosity of a Subordinate Employee Leads to Their Supervisor’s Demotion or Termination, this Bias May Be Imputed to the Employer Who May Be Held Liable for an Illegal Termination in Some Instances, Even if the Employer, himself, Has No Illegal Prejudice.
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If you are an employee who believes you are being discriminated against for illegal reasons, you should contact this office today for a free consultation. I have represented numerous employees for private and public employers and was successful in recovering financial compensation for their emotional pain and suffering and moneys for lost wages, both for past lost wages and projected future lost wages. We have locations in Southern, Central and Northern NJ to meet with clients. Call today for a free consultation.
Although it is generally thought that an illegal bias originates from a superior or co-worker of the same level, lower level workers acting with illegal animosity may disparage their supervisor to others or to one higher-up in authority, in an attempt to get them fired. These subordinate employees may begrudge their supervisor’s having a position of authority over them because of a bias against their sex, race, ethnicity or age, etc. New Jersey Race Discrimination Lawyer. By way of example, some biased males feel uncomfortable having to take orders from a woman or believe she was only promoted because of her sex. Bergen County, New Jersey Sex Discrimination Lawyer. Persons who are not a racial minority, may think that any minority promoted over them was only given the position because of their race; they simply are too biased or resentful to believe the person is more qualified. Younger workers may be part of the widespread pattern of believing that older workers, even their superiors, lack the capacity to keep up with nascent changes in their respective field. New Jersey Age Discrimination Lawyer. This biased valuing youth over age at all costs, prevails even against more qualified and experienced top specialists who are older. See NJ Age Discrimination Attorney, Qualified and Experienced IT Specialists Fired Due to Age. Some workers resent a supervisor who is pregnant or has a disability because they feel it is unfair that the employer makes an accommodation for their pregnancy or disability, when the accommodation is not extended to them. New Jersey Disability Discrimination Lawyer.
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 termination decision, under a “Cat’s Paw” theory of liability. Staub v. Proctor Hosp., 562 U.S. 411 (2011). In Staub, the U.S. Supreme Court speaks solely in terms of a biased supervisor and his or her actions and intentions. However, some later state and district courts have extended cat's paw liability to attach when the animus is not from a supervisor but a lower level employee or subordinate employee.
A terminated supervisor may wonder if he could ever have valid discrimination claim if the person who made the termination decision 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. The NJ Supreme Court in Battaglia v. United Parcel Service, Inc., 214 N.J. 518 (2013) held that, while not explicitly relying on the cat’s paw theory, effectively endorsed the theory. 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”, see How 17th century fable of a monkey and a cat is applied in employment discrimination lawsuit against UMDNJ.
Subordinate Bias Has Been Repeatedly Recognized by New Jersey Courts
The US Supreme Court in Staub does not permit cat's paw liability to attach when the biased subordinate is not a supervisor because only supervisors can be agents. In Staub, the Supreme Court speaks solely in terms of a biased supervisor and his or her actions and intentions. But some later state and district courts have extended cat's paw liability to attach when the animus is not from a supervisor but a lower level employee.
A subordinate employee, or co-worker, who does not have termination decision authority, may directly or indirectly bad-mouth, malign, or complain about the supervisor to the person who does have authority to terminate the supervisor, in an attempt to get the supervisor fired. The ultimate decision-maker, the higher-up with the authority to terminate, demote, or take another “adverse action” against the disparaged supervisor, may not themselves have any personal discriminatory animus toward the disparaged supervisor, and may not be aware that the disparagement is fueled by the discriminatory animus of a subordinate employee.
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 ... report disciplinary infractions, and recommend employment actions.’”
Although in most cat’s paw legal theory cases it is the discriminatory animus of a supervisor of the plaintiff that leads the ultimate decision-maker to terminate the plaintiff, the courts have made clear that, even when the source of that animus is not a supervisor of the plaintiff, an employer who is influenced by an employee’s bias to take an adverse action (such as a demotion) against an employee, can be held liable for discrimination. In cases where the source of the animus was an employee of the employer who was “below,” in authority or at the same level of, the plaintiff in the organization, numerous courts have nonetheless held the employer liable when the discriminatory animus has infected the employer’s decision to terminate the plaintiff’s employment.
In Burlington v. News Corp., 55 F. Supp. 3d 723, 738-39 (E.D. Pa. 2014), the Court held that where the source of the discriminatory animus was the conduct of one of the plaintiff’s nonsupervisory co-workers, cat’s paw liability can be imposed on the employer/defendants when four things are present: the Court held:
Plaintiff can establish a genuine issue of material fact on a cat's paw theory of liability if he establishes that one or more of his nonsupervisory coworkers:
(1) performed an act motivated by discriminatory animus...;
(2) the act was intended by the coworker to cause an adverse employment action...;
(3) that act is a proximate cause of the ultimate employment action, ...and either
(4) (a) defendants acted negligently by allowing the co-worker's acts to achieve their desired effect though they knew, or reasonably should have known, of the discriminatory motivation, or
(b) the coworker was aided in accomplishing the adverse employment action by the existence of the agency relation.
Female, minority, older, or disabled supervisors may experience a lack of support from underlings who are not in their protected class, which could animosity could infect their standing with their supervisor and spill over into unfair Employee Performance Evaluations. Discrimination based on a person’s sex, race, age etc., has not been eliminated in this culture, and still far too prevalent in places of employment. See NJ Sex Discrimination Attorney, I’m a Female Executive Unfairly Evaluated.
Note: This article is not legal advice and is not to be construed as giving legal advice in any situation or case. There are numerous changes and amendments in discrimination law and employment law that are mandated every year. If you have a legal question, you should consult with an employment attorney to discuss the specifics of your situation.
Don’t Sit on Your Rights
I have represented employees who were illegally discriminated against by their employers, and was successful in recovering 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 think you are being discriminated against, you should contact this office immediately 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.
Contact Hope A. Lang, Attorney at Law today for a free consultation.
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.