Traditional discrimination or retaliation claims involves the employer taking the discriminatory or retaliatory action. Often times companies will try to create an independent process for terminating an employee to avoid liability. For example: an employee receives several disciplinary write-ups. After a certain amount of write-ups, Human Resources becomes involved. At large companies, the HR Representative may have never met the individual. After review the write-ups, HR determines to terminate the individual. Companies then argue, how could the termination be discriminatory or retaliatory if the individual making the decision has never even met the employee being terminated? Clever. But so are Judges.
The “cat’s paw” theory of liability, holds that an employer can be liable for discrimination or retaliation if the employer acts innocently but based on input from a biased employee. Back to the example above. A discriminating supervisor may not have made the decision to terminate the employee or even been involved in the termination process at all. It could have all been handled by Human Resources. However, if the discriminating supervisor issued the employee the write-ups for discriminatory or retaliatory reasons and those write-ups were the reason HR came to its decision, then the employer is still liable for the termination. The Employer has acted “innocently” in terminating the employee because it may have believed the write-ups were valid. But, the Employer relied on the input of a discriminating supervisor.