Posted by marykeating on June 18, 2011 under Race-based discrimination | 
A recent case from the local District Court, just affirmed by the Fourth Circuit (the opinion was by retired Justice O’Connor), emphasizes the difficulty of establishing discrimination in workplaces where the discrimination takes the form of “death by a thousand cuts.” A Haitian worker, Geraldine Lauture, alleged that she was disciplined more severely than white employees for her infractions, particularly after an altercation with a white worker. But the employer hospital showed that some white employees had been given the same discipline for the same infraction, and therefore a finding of discrimination was impossible. The District Court stated it this way: “a consideration of the whole record, and not simply of individual cases within it,” allowed the employer to show that certain white employees, who may not have been known to the plaintiff, were also disciplined with the same measures.
The Court further refused to engage in a factual inquiry whether the errors the hospital said the employee made were really made. The hospital “is not required to conclusively substantiate her poor performance, only that it reasonably believed her performance to be deserving of discipline.”
We often see employers papering the files of employees before terminating them. This is good practice, it forces employers to deliberate over their decisions, and ideally precludes discriminatory decisions on demotions, discipline and termination. On the flip side, it provides a safety hatch for biased supervisors. All they have to do is write up the employee for infractions, real or imagined, and they insulate themselves from charges of bias, as federal courts routinely shrink from investigating too deeply. With the recent Supreme Court decision on the “cat’s paw,” there is still an avenue to investigate the bias of the person providing the write-ups, but it is not enough to show that the allegations were untrue.
Posted by marykeating on April 20, 2010 under Discrimination in employment |
Yesterday the Supreme Court agreed to decide a case involving the “cat’s paw” theory of discrimination. The case will be argued and decided next term, so Justice Stevens’ replacement should be on board by then (barring a major Senate gridlock). This theory of discrimination allows a plaintiff to show that, even though the decision maker who fired him was not biased against him, the biased person had influence over the decision or the decision maker. The colorful name derives from a short story about a monkey who convinces a cat to retrieve chestnuts from the fire. The monkey gobbles them up, but the cat has the burned paws.
This pops up in a lot of employment contexts. A supervisor may not have the power to fire his subordinates, but he certainly has the power to write them up and do their evaluations. If this person dislikes a subordinate because or his race or religion, for example, he can wage a campaign to get rid of the person. He can make up stories or exaggerate encounters so that the person can be called “insubordinate,” or “a poor team player. “This influence may be exercised
by, among other things, ‘supplying misinformation or failing to provide relevant information to the person making the employment decision.’”
The quote is from the case that the Supreme Court will hear, Staub v. Proctor Hospital. Staub alleges that he was fired for being a reserve member of the military. This action violates the Uniformed Services Employment and Reemployment Rights Act (USERRA). Staub showed that one of his supervisors found his military schedule problematic and wanted him fired. He won at trial, but the Seventh Circuit decided that there was too much evidence that the decision maker was independent of the biased subordinate’s influence, and used other, non-discriminatory reasoning to support his firing. The appellate court reversed his win.
It is never safe to predict why the Supreme Court takes a case, or which way it will rule. The Seventh Circuit faulted the trial court for not making a preliminary decision about whether there was enough evidence of “singular influence” by the biased supervisor to permit the cat’s paw theory to be presented to the jury. The Supreme Court may focus on that issue, or may decide to bless or damn the entire theory. Either way, it will be helpful to have guidance on the use of this theory of discrimination.
