Tuesday, July 17, 2012

The “cat’s paw” strikes back

In Staub v. Proctor Hosp., the Supreme Court passed judgment on the “cat’s paw” theory of liability in discrimination cases—an employer’s liability for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker. The Staub Court concluded that an employer can be liable for the discriminatory animus of a non-decision making supervisor who intends to cause, and does proximately cause, an adverse employment action.

In Chattman v. Toho Tenax Am. (6th Cir. 7/13/12) [pdf], the 6th Circuit applied Staub to reverse summary judgment in a race discrimination case. Chattman alleged that his employer’s HR director, Tullock, who recommended his termination for horseplay and fabricated that other supervisors supported the decision, was racially biased.

In support of this allegation of race-based animus, Chattman pointed to three separate incidents:

  1. Tullock told a “joke” that O.J. Simpson was innocent and that Nicole Brown was killed by their son because O.J. Simpson responded to a question from his son by answering “go axe your mother.”
  2. Tullock responded to another employee’s complaint that her son had gotten into trouble at school for fighting by saying “you know what my grandmother always says about boys scuffling? That’s how the nigger graveyard got full.”
  3. Tullock commented about then-Presidential candidate Barack Obama by saying “well you better look close at Obama’s running mate because Americans won’t allow a nigger president.”

Even though Tullock was not the decision maker, the court concluded that a jury question existed under the cat’s paw theory:

Chattman has shown that a genuine issue of material fact exists regarding whether Tullock intended that Chattman be disciplined…. There can be little doubt that Tullock desired Chattman’s termination when he made his recommendation and fabricated the agreement of the other supervisors….

Chattman alleges that Tullock knew that white employees engaged in horseplay but never reported any of those incidents to upper management, instead reporting the only incident on record of a black employee engaging in horseplay.

Tullock was the Human Resources manager, and he actively inserted himself in the decisionmaking process. He both misinformed and selectively informed … about the incident. A reasonable factfinder could find Tullock’s actions were a proximate cause of the adverse decisions.

When the Supreme Court decided Staub last year, I cautioned that it upped the ante for employers in discrimination cases:

The Court’s holding hinges on ideals such as “intent” and “proximate cause,” which are almost always fact-based inquiries. Because it is very difficult for an employer to win summary judgment on these issues, the Court has turned nearly every “cat’s paw” case into a jury case—an expensive proposition for employers.

Chattman does nothing to dissuade me of my earlier opinion.

What is the practical takeaway for employers? You better know who you have managing and supervising your employees. Companies do not make personnel decisions in a vacuum. Executives often rely on the front-line managers and supervisors for advice on who and when to discipline or fire. Yet, under Staub, businesses are on the hook for the discriminatory animus of these managers and supervisors, even if they have nothing to do with the ultimate decision. You never want a bigot managing your employees. The cat’s paw, however, provides employers added incentive to purge them from your managerial ranks.