Aging Feline Appendages

The Tenth Circuit federal appellate court issued an important opinion recently with respect to the application of the so-called Cat's Paw theory of employment discrimination to age discrimination cases.

I am generally sensitive to any type of age discrimination development because I think that this is the next "big thing" in employment litigation. Certainly demographics argue in favor of a burgeoning number of age discrimination claims as the Boomer population refuses to go gently into that good night.

The Cat's Paw model is fairly straight forward - prohibited discriminatory acts that are accomplished through the manipulation of someone other than the person with the illegal discriminatory bias are just as illegal under federal discrimination law as discrimination that is accomplished directly by the alleged bigot. The Supreme Court validated the basic concept in a matter heard just last term.

The 10th Circuit considered the application of the theory in an age case where two human resource employees, one 62, and one 23, were investigated for revealing confidential medical information about a company employee.  After an investigation, the company terminated both employees. The older employee sued for age discrimination, claiming that the local office manager and HR supervisor were biased against older workers, and that they had influenced the decision by the company's senior HR management to terminate her employment.

As an initial matter, the fact that the company terminated a younger and an older employee at the same time for the same conduct significantly undercuts basic age discrimination claim. Moreover, the Tenth Circuit determined that because this case involved age discrimination, the employee must demonstrate that the discriminatory animus of the two supervisors (who were alleged to influence the ultimate termination decision) was the determining factor that caused the termination. To use legal terminology, age bias must be the "but for" cause of the termination.

This "but for" cause requirement is unique to age discrimination cases under recent Supreme Court precedent. It significantly raises the proof requirement for plaintiffs in age discrimination cases, and the Tenth Circuit correctly applied the standard here. It also helped the employer that there was not one, but two truly disinterested parties who made the termination decision and that these managers conducted independent interviews of the individuals involved in the improper disclosure of information. These factors all worked to isolate the decision makers from the alleged discriminatory animus and short circuited any feline related discrimination claims.  

The case again points up the dramatic importance of establishing and maintaining independent channels of investigation when these types of bias claims come forward.