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Defeat the 'cat's paw' defense to vicarious liability: employers are seeking to avoid subordinate-bias liability for employment discrimination by claiming that the chain of causation was broken by an unbiased final decision-maker. Basic principles of tort and agency law can help you keep that chain intact.

Article Excerpt
Numerous federal civil rights statutes protect employees from illegal discrimination, and a vital civil justice system is the mechanism for the enforcement of these statutes. However, recent developments concerning vicarious liability in employment discrimination cases threaten to replace the civil justice system with a system of corporate self-policing. The potential for damage to the quality of equal opportunity is extraordinary.

All civil rights statutes require an employee to prove an employer's discriminatory intent in order to prove disparate treatment in employment discrimination cases. Employers now routinely argue that liability exists only where the final decision-maker possesses that discriminatory intent.

Under this theory, an employer really intent on avoiding accountability for disparate-treatment employment discrimination need only centralize the final decision-making authority in human resources (HR) personnel. Even where the disciplinary process is initiated by a supervisor with illegal motivation, HR can conduct a so-called independent investigation sufficient to break the causal chain of discrimination. Once the causal chain is broken, the discriminatory intent of the supervisor cannot be imputed to the employer.

Employers argue that the question is not whether the decision by HR is right or wrong, but only whether it is motivated by illegal animus. Even if the employee can prove that the supervisor was biased and that HR made the wrong decision, liability is avoided. In this way, a corporate HR investigation usurps the Equal Employment Opportunity Commission (EEOC), judge, and jury, and it deprives the employee of a fair opportunity for redress.

Employers argue that in order to establish liability, the employee must prove that the final decision-maker is a rubber stamp or "cat's paw" for the biased supervisor. The term "cat's paw" comes from the Jean de La Fontaine fable in which a monkey convinces an unwitting feline to pull chestnuts from a fire. As the cat scoops the chestnuts--burning its paw in the process--the monkey eagerly gobbles them up, leaving none for the cat. (1) Within the employment context, the final decision-maker in HR is the cat, doing the biased supervisor's bidding, unaware of his or her true motivation.

Whenever possible, lawyers attempting to vindicate employment civil rights should argue in favor of traditional tort principles. They should argue that no so-called independent investigation is sufficient to break the causal chain of discrimination because it is not an independent and superseding cause.

In some jurisdictions, however, plaintiff counsel must be prepared to argue that the decision by HR was merely a rubber stamp or "cat's paw" for the recommendation by the biased supervisor. In other circuits, they should argue that the causal chain of discrimination has not been broken because the investigative process was insufficient or tainted by the biased supervisor who initiated or participated in the disciplinary process. Since allegations of illegal discrimination require a more comprehensive investigation, employees who suspect illegal discrimination should be encouraged...

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