Employees alleging race discrimination under an old federal law, 42 U.S.C. § 1981, may bring claims against supervisors, managers, and human resource professionals who intentionally cause a decision-maker to take an adverse action against that employee in retaliation for protected activity. In a case of first impression, the United States Court of Appeals for the Seventh Circuit held that the cat’s paw theory can support individual liability under § 1981 for an employee who intentionally causes an employer to retaliate against another employee. Smith v. Bray, No. 11-1935 (7th Cir., May 24, 2012). Section 1981, enacted by the Civil Rights Act of 1866, is a federal statute that protects the rights of all persons to make and enforce contracts, including the making, performance, modification, and termination of contracts and enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.Continue reading this entry
On August 11, 2010, a federal court rejected a terminated employee’s “cat’s paw” argument. Lindsey v. Walgreen Co., No. 10-1036 (7th Cir. August 11, 2010).
Katie Lindsey was 53 years old when she sued her employer under the Age Discrimination in Employment Act (ADEA). A few years after she began her employment, Ms. Lindsey was promoted from staff pharmacist to pharmacy manager by the district pharmacy supervisor. Before long, the company received complaints from Ms. Lindsey’s co-workers, and the same district pharmacy supervisor determined that Ms. Lindsey was not fit to continue in a managerial position. The district pharmacy supervisor then demoted Ms. Lindsey to staff pharmacist, transferred her to another store, and warned her that she would be fired the next time she failed to follow pharmacy procedures. The district pharmacy supervisor later determined that Ms. Lindsey again violated company policy and terminated her employment.
Ms. Lindsey presented several theories of discrimination, including the cat’s paw theory, a term that refers to an unbiased decision-maker who is being used as a tool by a biased employee. Ms. Lindsey argued that the district pharmacy supervisor was a cat’s paw for a co-worker, who she claimed disliked Ms. Lindsey because of her age. Ms. Lindsey insisted that the district pharmacy manager decided to fire her after “blindly relying” on biased information from the co-worker. At her deposition, Ms. Lindsey testified her new co-workers called her “lazy” and “slow” and questioned why the employer repeatedly exiled “old,” “demoted” pharmacists to their store. She also testified the alleged biased co-worker made disparaging remarks about her age and abilities.
The court rejected Ms. Lindsey’s argument because the employer proved that its employment decision was based on an independent evaluation and was not tainted by any alleged bias. This case underscores the importance of appointing a neutral decision-maker to review the basis of termination decisions and thoroughly document the factors that formed the basis of the employment decision (also discussed in the March 1, 2010 Labor and Employment Law Update. Otherwise, the cat’s paw may be the link between the employment action and the biased decision.