Cat’s Paws, Rubber Stamps, and Proof of Race Discrimination
A June EEOC press release alerted me to a very important decision of the Tenth Circuit Court of Appeals in a race discrimination case involving a Coca-Cola bottling company.
The issue is proving discrimination where the evidence shows that a subordinate who provided information or other input central to the challenged employment decision was biased, but the ultimate decisionmaker was not.
Various federal circuits have adopted somewhat different standards for deciding such cases.
In this case, the 10th Circuit now sides with the 7th Circuit, adopting a standard that, while favoring employees in some circumstances, also provides clear guidance to employers seeking to reduce exposure to discrimination liability.
What does this have to do with “cat’s paws” and “rubber stamps”?
The court explained:
Other courts have recognized claims under Title VII based on the bias of a subordinate, often using the terms “cat’s paw” or “rubber stamp” to describe the theory.
The “cat’s paw” doctrine derives its name from a fable . . . in which 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. Today the term “cat’s-paw” refers to “one used by another to accomplish his purposes.”
In the employment discrimination context, “cat’s paw” refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.
The “rubber stamp” doctrine has a more obvious etymology, and refers to a situation in which a decisionmaker gives perfunctory approval for an adverse employment action explicitly recommended by a biased subordinate.
The facts of this case, which are well worth reading, could not be readily characterized as involving either a “cat’s paw” or a “rubber stamp” situation.
Boiling the facts way down (as I must given the detail with which they are reported in the opinion), here’s the story –
The EEOC filed suit on behalf of a former employee terminated in connection with his failure to report for mandatory weekend overtime. Initially this absence appeared unjustified and insubordinate, but later the former employee obtained evidence of illness justifying it.
The HR decision maker, in an office 450 miles away, approved the termination without knowing the employee’s race.
Normally such ignorance would preclude any finding of discrimination, as common sense would suggest. After all, how could someone make a decision based on race without knowing the individual’s race?
Here, however, the EEOC put together strong evidence from several witnesses supporting an inference that the supervisor who contacted HR was biased against African-Americans. This evidence included both discriminatory remarks and specific incidents.
The 10th Circuit, reversing the district court’s order granting summary judgment for the employer, announced the following standard:
To prevail on a subordinate bias claim, a plaintiff must establish more than mere “influence” or “input” in the decisionmaking process. Rather, the issue is whether the biased subordinate’s discriminatory reports, recommendation, or other actions caused the adverse employment action.
The court rejected the contention that “an employer may be liable on a subordinate bias theory only if the decisionmaker receives and approves an explicit recommendation to terminate an employee,” which was not the case here as the supervisor simply reported facts for HR to handle.
Applying this standard, the court conducted a detailed factual analysis and concluded that a jury could reasonably conclude that the supervisor lied to the HR decision maker about certain significant details. The court further concluded that a jury could find that these lies caused the termination.
So far, pretty scary stuff for employers — being liable for every bigoted supervisor no matter how innocent the decision maker is.
So where’s the silver lining?
The court spelled out very clearly what employers can do to avoid liability arising from such situations:
[B]ecause a plaintiff must demonstrate that the actions of the biased subordinate caused the employment action, an employer can avoid liability by conducting an independent investigation of the allegations against an employee. . . .
In that event, the employer has taken care not to rely exclusively on the say-so of the biased subordinate, and the causal link is defeated.
Indeed, under our precedent, simply asking an employee for his version of events may defeat the inference that an employment decision was racially discriminatory. Employers therefore have a powerful incentive to hear both sides of the story before taking an adverse employment action against a member of a protected class.
The employer in this case got it only half right.
Apparently, it wisely required that ultimate termination decisions be made not by supervisors with close working familiarity with the employee, but by neutral decision-makers in HR.
However, it failed to ensure that such decision-makers were adequately informed and to conduct a thorough and independent investigation, including discussing the incident directly with those involved, especially the employee himself.
Additional reading: The Split Circuits blog, specializing in cases revealing differences between the federal circuit courts of appeal — issues that often make their way to the SupremeCourt — quotes the passages from this opinion that indicate the positions of other circuits: “Tenth Circuit Notes Split re Level of Control Required for Subordinate Bias Liability Under Title VII.”
photo credit: DarrylW4 via flickr
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Comments
Pretty convincing research in cognitive psychology (noted by Linda Hamilton Krieger in her scholarly work, among others) suggests that an “independent” investigation is pretty tough to accomplish in this type of situation. When presented with a case for termination by a supervisor, such “neutral” decision-makers tend to accept the termination recommendation as the “correct” hypothesis, focusing on and overstating any evidence that might be hypothesis confirming and discounting any evidence that would be hypothesis disconfirming. Therefore, even “independent” investigations can adopt the biased supervisor’s position in the face of clear evidence to the contrary. So, it’s not so clear that the investigation breaks the causal link in any real sense.
And the cognitive psychologists will also testify all day long about “unconscious bias.”
But the decision must be made in a court of law based on the evidence.
Suggesting that a supervisor has “unconscious bias” is a very different thing then proving that such bias caused the supervisor to report misconduct or recommend discipline or termination.
And in a “subordinate bias” case, psychological expert testimony as to what decision-makers TEND to do when conducting supposedly independent investigations is a very different thing than proving that the decision maker actually did not make a fair and independent assessment of the facts.
If a company is large enough to be able to do so, it should have trained HR investigators who get “both sides of the story,” make reasoned determinations as to any necessary credibility resolutions, and ensure that decisions are consistent with past treatment of similarly situated employees.
Without such a specialist, the same procedure should be followed. I know it sounds self-serving, but with termination decisions, consultation with counsel is advisable.
Speaking personally, I don’t care what the academic psychologists say. “Neutral” decision-makers operating in the arena of employment decision making, with experience and awareness in the area of discrimination claims, do NOT “tend to accept the termination recommendation as the ‘correct’ hypothesis.”
Because of the legal risk, good employment counsel puts a heavy burden on managers to justify terminations. If anything, the presumption is against termination absent a substantial record of past misconduct or poor performance.
Of course you’re free to ignore what the academic psyhcologists say. But, that doesn’t really confront their findings head on. If I understand the cognitive psychology literature correctly, the difficulty with relying on your experiences or impressions (e.g., when “good counsel” gets involved or when “trained HR professionals” try to “get ‘both sides of the story’”) is that the hypothesis forming and the hypothesis confirmation bias (in addition to the unconscious bias that your comment seems to question) work below the level of, but have a profound effect on, conscious decision-making. So, a good faith effort to “get ‘both sides of the story’” doesn’t necessarily turn out to fairly represent both sides of the story. And a conscious presumption against termination doesn’t necessarily override the unconscious biases that are often at work in the collection and evaluation of evidence.
Perhaps that good faith effort is all we can expect of an employer and its counsel. Law is often about line drawing and there’s a reasonable argument taht the good faith effort is enough to create a presumption of fairness in favor of the employer. It would reflect a probably fundamental discomfort most people have with holding anyone responsible for processes that occur beyond their conscious control. But I think the question of whether the causal chain in a subordinate bias situation is in fact broken by an investigation by counsel or HR is still valid.
I take your first point to be that the legal process (and perhaps, more specifically, employment discrimination law) is ill-equipped to incorporate the lessons of cognitive psychology. That may or may not be a convincing argument, but at any rate it is a (unsatisfying?) compromise/policy choice in that it ignores a well-established body of knowledge about how our brains work when collecting information and making decisions.
More importantly, though, I’m far from an expert on cognitive psychology and its application in employment discrimination cases (at best I haphazardly dabble in the literature, so take what I write with a grain of salt — as with pretty much any blog comment) and my initial comment was barely more than a quibble with a minor part of your post. Your practical observations in the post and in the comments seem to me right on in terms of the current state of the law.
Love the blog.
For those who nonetheless still prefer to rubber stamp subordinates’ decisions, google has kindly supplied ads for some sources for rubber stamps.