CAT’S PAW LIABILITY – HR PROFESSIONALS SHOULD TAKE CAUTION TO AVOID GETTING BURNED

If you are a typical busy HR professional, there is a pretty good chance that you may have missed the Supreme Court ruling from last year dubbed “The Cat’s Paw Theory” or “Cat’s Paw Liability” case.  There have been quite a few articles written on the topic, but most just cover the theory itself and its legal ramifications, not how it relates to the Human Resources profession.

It is not unusual for an HR Manager to have a supervisor or executive come into his/her office and say that they want to terminate an employee for not meeting performance standards.  Normal course of business would be for the HR Manager to try to elicit the facts surrounding the situation with a series of questions: “has this been documented?” and “have you discussed it with the employee?” etc.  Then, together the supervisor and HR Manager may make the decision to terminate the employee.  At times, unfortunately, the HR Manager may find out later that the supervisor had not provided all of the facts surrounding the situation or may have even had a discriminatory motive behind the decision to fire the employee.  Not only is this a very upsetting situation to find oneself in, but now, under the Cat’s Paw Liability ruling, it may lead to costly litigation.

Defining the Issue

Let’s take a step back and define “cat’s paw” liability.   The term derives from a centuries old fable by Jean de La Fontaine about a cat who is persuaded by a monkey to steal chestnuts from a fire.  The cat burns its paws, while the monkey eats all of the stolen chestnuts.  Basically, it is used to describe a situation where a person is unwittingly manipulated by another to accomplish his or her illicit purpose.

So, just how did we make the jump from an old fable to employment law?  In March of 2011, the Supreme Court issued a decision stating that an employer may be legally liable for unlawful discrimination where a supervisor, motivated by some unlawful animus (defined as “a feeling of strong ill-will or hatred”), performs an act that is intended to cause an adverse employment action against an employee, and that supervisor’s act is the most recent cause of an ultimate adverse employment action.  Or in terms of the fable, our HR Manager in the scenario above is the cat who aids in the decision to terminate an employee based on the information solely provided by the supervisor, the monkey.

Suggestions to Avoid Legal Liability

Given the very real possibility that HR professionals can be named in a discrimination lawsuit under the Cat’s Paw Theory, below are several recommendations that may aid in avoiding legal liability:

  • First and foremost in all cases where an adverse employment decision is being suggested by a supervisor, a thorough investigation should be conducted to determine the facts in the case.  Never simply rely on information provided by supervisors.  Talk to the accused to get his/her side of the story.  Seek out and ask questions of witnesses who may be able to provide additional information.
  • In the case where a protected party is involved (not only by Title VII, but all categories protected by law), slow the process down if possible.  If there is any question of animus on the part of the supervisor, bring in an independent third party, such as a Human Resources Consultant or labor attorney, to research the case to ensure that decisions are being made solely based on performance.
  • Develop a clear, concise anti-discrimination policy and distribute it to all employees on an annual basis.   Also, when developing anti-discrimination/anti-harassment policies include several avenues employees can use to present their claims of potentially inappropriate behavior.
  • Training should be held for all employees, not just those in supervisory roles, on workplace conduct.  Not only will this reduce the potential liability of the employer for actions of their employees, but it also informs employees of their rights and responsibilities.
  • Review employee performance evaluations on a regular basis to confirm that policies are being applied consistently to all employees.  This may help to determine if there are any potentially discriminatory actions/animus behaviors being conducted at the supervisory level.

Bottom Line

HR Managers need to be aware of potential liability associated with their involvement in adverse employment decisions and take the steps necessary to make sure that all such decisions are based on sound HR principles and not simply on the word of another party.

 

Ann Kontner is a former senior human resources executive with vast experience in all facets of the HR field. She brings to S&J over 25 years of HR experience in corporate compliance, administrative management, staff development and executive leadership skills. She has worked for a wide range of employers including both public and privately held corporations, federal government contractors, and has experience working in both domestic and international markets.
 
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