Lexicon, Cat’s paw

By Tenechia Lockhart

Typically, the plaintiff in an employment discrimination suit alleges that a supervisor or other decision maker had discriminatory animus against her, which ultimately led to an adverse employment action. However, plaintiffs in employment discrimination suits are not limited to producing evidence of the decision maker’s animus. The cat’s paw theory allows the plaintiff to prevail in an employment discrimination suit by showing that a non-decision maker’s discriminatory animus led to adverse employment action.

The cat’s paw theory is a form of subordinate bias liability. Essentially, the cat’s paw theory imputes the discriminatory bias of a subordinate who lacks the formal authority to enforce an adverse employment action, onto a decision-maker who does have formal authority. The doctrine is based in agency principles.

The cat’s paw theory is derived from the fable The Monkey and the Cat by Jean La Fontaine. In the fable, a monkey convinces an impressionable cat to pull chestnuts from a hot fire. Each time the cat pulls a chestnut from the fire, burning his paw, he finds that the monkey has eaten the chestnut. In relation to the cat’s paw theory, the cat represents the decision maker, and the monkey represents the non-decision maker.

The Seventh Circuit’s Judge Posner first introduced the cat’s paw theory into employment law in Shager v. Upjohn Co., 560 F.3d 647 (7th Cir. 2009). Until the Supreme Court decided Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), the circuits were split on the proper standard to find liability. Even though the Supreme Court decision in Staub interpreted USERRA, courts have applied its holding to Title VII, the ADEA, and the ADA.

In Staub, the plaintiff alleged that he was terminated because his immediate supervisor, among others, harbored discriminatory animus toward the plaintiff’s military obligations, and fabricated disciplinary infractions to encourage his termination. 131 S.Ct. 1186, 1188. Justice Scalia’s opinion framed the issue as “aris[ing] when [the] official [who made the decision to terminate the employee] has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else.” Id. at 1191. Justice Scalia reasoned that agency principles created liability on the part of the employer when its employees harbored discriminatory animus, which ultimately lead to an adverse action. Id. But the cat’s paw theory is not as simple and clear-cut. Relying heavily on tort principles, Justice Scalia held that “if a supervisor performs an act motivated by [impermissible] animus that is intended by the supervisor to cause an adverse employment action, and if that act is proximate cause of the ultimate employment action, then the employee is liable.” Id. at 1194. The Court also held that an employer cannot sever its liability under the cat’s paw theory by merely conducting an independent investigation. Id. at 1193.

Questions remain about how this cat’s paw theory will develop in practice.

Lexicon, Same-actor inference

By Tenechia Lockhart

In employment discrimination claims, the same actor inference allows the factfinder (the judge in a bench trial and the jury in a jury trial) to infer that a supervisor who hires or shows favorable treatment to an employee, will not later act in a discriminatory manner based on the employee’s protected class status.

Take this example, for instance. Bob is hired at the age of 41 years old by John his supervisor. Four years later when Bob is 45 years old, John terminates Bob. If Bob sues his employer for impermissible age discrimination, the same actor inference would permit the factfinder to infer that John did not have discriminatory animus towards Bob because John favored Bob by hiring him.

An important aspect of the same actor inference to consider is the time between the favorable action, i.e. hiring and the adverse action, i.e. termination. The shorter the time interval between the two actions, the stronger the inference becomes. The District of Nevada has held that an interval of almost seven years still invoked the inference. See Hansen v. Clark County, No. 2:05, CV-672-BES-VPC, 2007 WL 1892127, at *8 (D. Nev. June 27, 2007).

Criticism over the same actor inference has not been light. The inference ignores the “glass ceiling” effect, where a supervisor might approve of hiring a person for a particular position but be biased against promoting that person to a different position. For example, a supervisor might not have a problem hiring a woman as a secretary, but may not want to promote women to positions with higher levels of authority. The inference ignores that supervisors may receive pressure from others to later treat an individual differently because of a protected trait. It also ignores that a supervisor might treat an employee negatively for not living up to race or gender expectations. For example, during an interview the supervisor might perceive a woman as docile, but then later terminate her for being “too bossy,” even though men would not be terminated for the same behavior. From a procedural perspective, it is unclear how the same-actor inference fits into existing frameworks and whether it is ever appropriate for a judge to invoke the inference when factual questions exist.

Lexicon, Direct Evidence

By Tenechia Lockhart

In employment discrimination cases, a plaintiff may produce direct or circumstantial evidence of discrimination to support her claim. Although the Federal Rules of Evidence do not make a distinction between these two types of evidence, the distinction between direct and circumstantial evidence is important in some discrimination cases. The concept of direct evidence of discrimination emerged after Justice O’Connor’s concurrence in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Justice O’Connor opined that in order for a plaintiff to prevail in a mixed-motive discrimination case she must produce direct evidence.

But what is direct evidence of discrimination? The federal courts have struggled with both defining and identifying direct evidence of discrimination. So much so that the Seventh Circuit has stated that “[c]ourts have noted the difficulty of defining direct evidence for discrimination claims. . . [and] [o]ur own statements on what constitutes direct evidence are not in complete harmony.” Sanghvi v. St. Catherine’s Hosp., Inc., 258 F.3d 570, 574 (7th Cir. 2001) (noting the lack of consensus within the Seventh Circuit, alone.) The Eleventh Circuit has described direct evidence of discrimination as “evidence, that, if believed, proves the existence of a fact in issue without inference or presumption . . . [and] is composed of only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of some impermissible factor.” Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir.1999). Whereas the First Circuit defined direct evidence of discrimination as evidence “which, in and of itself, shows a discriminatory animus.” Jackson v. Harvard University, 900 F.2d 464, 464 (1st Cir. 1990). However, direct evidence of discrimination is not “stray remarks in the workplace . . . statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself.” Price Waterhouse, 490 U.S. at 277 (O’Connor, J. concurring).

Take these facts for example. A male supervisor, John tells an employee, Alice, that she should not apply for a promotion because she recently had a child and would never be qualified for the time-consuming position. Ignoring John’s comment, Alice applies for the position and interviews before a three-member panel. John is not on the panel. Alice is not hired for the position and sues. Is John’s comment direct evidence of discrimination? It is unclear how a court would answer this question, although courts are generally reluctant to determine that a plaintiff has direct evidence of discrimination.

The choice of whether this is direct or circumstantial evidence is important, at least in single-motive cases. At summary judgment, a court will choose a framework through which to analyze the case. If a plaintiff has direct evidence, the court will simply ask whether a material question of fact exists about whether the employer took an action because of a protected trait. In most circuits, if a plaintiff alleges a single-motive case and has circumstantial evidence, the court will funnel the facts of her case through a McDonnell-Douglas analysis. The Seventh Circuit has created a test that allows a plaintiff to proceed through the direct framework if she has direct evidence or a convincing mosaic of circumstantial evidence.

The direct/circumstantial dichotomy is less important in mixed-motive cases. The Supreme Court held in Desert Palace v. Costa that courts should analyze motivating factor cases through the same test, whether the plaintiff had direct or circumstantial evidence. The Court’s holding in Desert Palace raises substantial questions about why the direct/circumstantial divide continues to exist in so-called single-motive cases.

Lexicon, McDonnell Douglas Test

The McDonnell Douglas test refers to a three-part burden-shifting framework that courts use in some discrimination cases. The Supreme Court created the test in 1973 in the case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In McDonnell Douglas, an African-American employee brought suit alleging discrimination under Title VII of the Civil Rights Act of 1964 when his employer failed to re-hire him as a mechanic.

Under the McDonnell Douglas test, the plaintiff bears the initial burden. The plaintiff must prove the following: “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” Id. at 802. In a footnote in the decision, the Court noted that these elements would change to fit the circumstances of individual cases.

After the plaintiff satisfies each of these four elements, the burden then shifts to the defendant to articulate some legitimate and non-discriminatory reason for its action. If the employer does this, the burden then shifts back to the plaintiff to prove that the reason provided by the defendant was pretextual or discriminatory.

In a later case, Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court clarified the McDonnell Douglas test. In Burdine, the Supreme Court lessened the defendant’s burden in the McDonnell Douglas test. Cases prior to the decision had held that the employer had both the burdens of production and persuasion on the second step of the McDonnell Douglas test. For example: The plaintiff needed to prove the four elements of the prima facie case, then the defendant needed to prove that it had a legitimate non-discriminatory motive, then ultimately, the plaintiff could prove that the reason was pretext. If the defendant could not carry the burden of persuasion that it had a legitimate non-discriminatory reason for the adverse employment action then the burden would not shift back to the plaintiff. The Supreme Court, however, said that the defendant did not have a burden of persuasion. The defendant in the McDonnell Douglas burden-shifting framework only carries the burden of production. In other words, it only needs to present evidence of its nondiscriminatory reason for its actions but does not need to prove the existence of that reason.

by Erin Alderson

Lexicon, Disparate Impact

By Erin Alderson

Disparate impact discrimination occurs when an employer’s business practice has a disproportionate and adverse effect on persons in a protected class. The disparate impact theory of discrimination was first articulated in the Supreme Court case, Griggs v. Duke Power Co., 401 U.S. 424 (1971).

In Griggs, a group of African-American employees sued their employer, a power company, for requiring applicants to possess a high school diploma and a certain test scores to qualify for certain jobs. The District Court and the United States Court of Appeals for the Fourth Circuit held that absent a discriminatory motive the requirements were proper. The Supreme Court held that these practices constituted disparate impact discrimination because the standards were not shown to be significantly related to successful job performance and the requirements disqualified African-Americans at a substantially higher rate than white applicants.

In 1991, Congress codified disparate impact into Title VII. The Civil Rights Act of 1991 added the following language:

(k)(1)(A): An unlawful employment practice based on disparate impact is established under this title only if:

(i)    A complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or

(ii)  the complaining party makes the demonstration described in sub paragraph (c) with respect to an alternative employment practice and the respondent refuses to adopt such alterative employment practice.

This language sets up a three-part test for disparate impact claims under Title VII. First, the plaintiff establishes that an employment practice causes a disparate impact. An employer can overcome a claim of disparate impact discrimination by demonstrating that the employment practice in question is “job related for the position in question and consistent with business necessity” (for Title VII discrimination claims). The plaintiff can still prevail if it can show that the employer could have used an alternative employment practice that did not result in a disparity.

An example may be helpful. Let’s say a city requires all firefighters to have a height of 6 feet and weigh at least 140 pounds. This requirement would have an adverse effect on women. The employer would likely be unable to show that a height and weight requirement is necessary for the job. Rather, if the employer wanted to test strength, the employer should rely on tests that measure it. In this case, height and weight are not a good proxy for strength and are not related to job performance.

Under the Age Discrimination in Employment Act (ADEA), the analysis works differently. The first step is the same as for Title VII cases, where the plaintiff establishes that a particular practice created a disparate impact. However, the employer’s response to this showing is different under the ADEA than it is under Title VII. An employer can overcome a claim of disparate impact discrimination under the ADEA if it demonstrates that the practice was based on a reasonable factor other than age. Smith v. City of Jackson, 544 U.S. 228 (2005). In Meacham v. Knolls Atomic Power Laboratory, the Supreme Court clarified that the employer has the burden of demonstrating that the challenged employment practice is “based on reasonable factors other than age” (RFOA) because it is an affirmative defense. Many employers have successfully used this defense by demonstrating that the practice in question is reasonable. Unlike the “business necessity” defense, which is used in Title VII disparate impact claims, the RFOA defense does not consider whether there are other ways for the employer to achieve its goals which would not result in a disparate impact on a protected class.