Be careful not to rely solely on information about an employee that you receive from someone else. Last week another Circuit Court of Appeals officially adopted the "cat's paw" theory of liability in discrimination cases. The Tenth Circuit allowed the EEOC to go forward with a claim for racial discrimination even though the human resources official who made the decision to terminate employment lived in a different city, had never met the employee and did not know that the employee was African American. (The Tenth Circuit includes Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah.)
In EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, No. 04-2220 (10th Cir. June 7, 2006), the EEOC successfully argued that Coca-Cola could be liable for race discrimination even though the human resources decision-maker was unaware of the employee's race. She made her decision based solely on information she received from the employee's allegedly biased supervisor, who made her his "cat's paw" or "dupe." (The Ninth Circuit adopted the "cat's paw" theory of liability last year in Galdamez v. Potter, 415 F.3d 1015, 1026 n.9 (9th Cir. 2005) ("Title VII may still be violated where the ultimate decision-maker, lacking individual discriminatory intent, takes an adverse employment action in reliance on factors affected by another decision-maker's discriminatory animus.").)
The "cat's paw" theory of liability (also described as a "subordinate bias" or "rubber stamp" theory) is based on a fable described in the Tenth Circuit's opinion: "[A] monkey convinces an unwitting cat to pull chestnuts from a hot fire. . . . As the cat scoops the chestnuts from the fire one by one, burning his paw in the process, the monkey eagerly gobbles them up, leaving none left for the cat." In the employment discrimination context, the term "refers to a situation in which a biased subordinate, who lacks decision-making power, uses the formal decision-maker as a dupe in a deliberate scheme to trigger a discriminatory employment action."
The Moral of the Story
The key, says the Tenth Circuit, is to "hear both sides of the story before taking an adverse employment action against a member of a protected class." The breadth and depth of the investigation will depend on the complexity of the issues involved and the potential magnitude of any adverse action. The Tenth Circuit made it clear that investigating means doing more than merely opening an employee's file, but it can mean as little as "simply asking an employee for his version of events." Of course, it is good practice to conduct an independent investigation of the allegations against an employee before taking any adverse action. Get the employee's side of the story, solicit objective input and review from other managers and supervisors with a logical connection to the decision involved and take all necessary steps to ensure that the supervisors you rely upon for information are free from credible claims of illegal bias. Don't monkey around.