Get it? Cats-paw--littering? You have to be quick on this blog.
A recent 7th Circuit Court of Appeals case here in Chicago demonstrates yet another way that well-meaning human resources personnel can find themselves defendants in an employment discrimination lawsuit. The HR director of a company was accused of facilitating the termination of an employee after he complained about race discrimination and went to see a lawyer. Following the termination, the now ex-employee sued the company, his direct supervisor, and the HR director.
Note to potential plaintiff readers--while seeing a lawyer is frequently a good idea when you think your bosses are racist, telling your racist bosses that you are seeing a layer--while perfectly legal-usually gets a less than enthusiastic response.
The plaintiff brought his case not under Title VII, but under the so-called Civil War Civil Rights Act of 1866. This type of case is often referred to as a "Section 1981" action, and the law applies only to claims of race discrimination and has several key differences from Title VII. The big difference for our purposes is that individual supervisors are liable under Section 1981 claims, while they are generally not liable under Title VII. The plaintiff here sued the HR director personally, claiming retaliation under the cat’s paw theory, alleging that she had been at least partially responsible for manipulating the plant supervisor into firing him, although she did not have the authority to do so herself.
The unfortunate HR director, who had, of course, been involved in the plaintiff's termination because that's what HR people usually do, found herself in the litigation crosshairs after the company went bankrupt, cutting off any remedy, and the allegedly racist supervisor settled out his claim.
The Court issued two important holdings--the first is that cat’s paw liability can exist in Section 1981 cases. That's big--if individual employees can be liable for race discrimination claims, then the cat’s paw application allows a plaintiff to reach far into a corporate structure to touch multiple defendants. This makes HR personnel especially vulnerable since they can be accused of facilitation for almost any adverse employment action.
The second holding is also important, because it resulted in the HR director being let off the hook. The court determined that there was insufficient evidence of retaliatory animus to allow the case to go forward against her. In short, although you can be sued as a cat’s paw (or more properly, as a monkey, see here), the plaintiff still has to come up with evidence that your actions were motivated by race or retaliation.
And it has to be more evidence than just involvement in the employment decision. In this case, that fact of involvement was a given-indeed, for an HR director, it would've been unusual for her not to have been involved. What saved the HR is that there was no admissible evidence that she was retaliating when she processed the termination. And in making this determination, the Court made what I consider to be a major evidentiary ruling: comments by managers with respect to an employment termination could properly be considered to be made in furtherance of a "conspiracy”, and therefore each manager's comment could be admissible against the other manager as evidence of illegal discrimination; but to establish the underlying conspiracy, there needs to be a showing of more than just normal corporate coordination in the process.
That's a mouthful, but here's what it boils down to-it's perfectly normal for an HR director to have multiple conversations with supervisors about a problem employee, and that employee's termination. But HR directors and their staff must understand that if the employment decision is challenged as discriminatory, not only everything that they say, but everything the other supervisors say is potentially admissible against them to establish their individual liability to the plaintiff. The only saving element here is that normal, day-to-day interaction on employment situations is not sufficient to show a conspiracy; there has to be some type of showing that the HR staff and the supervisors were taking unusual or extreme measures, or focusing on the individual more than they normally would under the circumstances, or knew they were doing something improper.
So, this case is worth a read. The decision identifies a number of potential avenues for personal liability in race discrimination claims, particularly for human resources personnel. My advice is to constantly monitor internal communications with respect to problem employees, and keep those communications on a professional level at all times—the people here got into trouble because there was a fair amount of personal dislike between the supervisor and the plaintiff that spilled over into their communications. Moreover, employers should be aware that in race discrimination claims, more than just company assets are on the line.