Need a way to neutralize a supervisor’s potentially biased employment decision? I’ll give you two.

I can’t tell you how to get toothpaste back in the tube. However, I can offer two ways to avoid losing a discrimination lawsuit when a biased supervisor recommends terminating a direct report.

Before I share these tiny pearls of wisdom, I want to remind you to register (here) for the return of The Employer Handbook Zoom Happy Hour: “Offboarding the C-Suite” on Friday, September 30, 2,022, at Noon ET. It’s totally FREE!

We will explore workplace investigations of executive wrongdoing, terminations, and resignations. We’ll also discuss common drafting errors in C-Suite employment and separation agreements, enforcing post-employment obligations, and communicating the change to your workforce.

My guest will be Bob Ellerbrock, who focuses his practice on executive compensation, employee benefits, and ERISA.

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Now let’s talk about cats’ paws.

Eric, why are we talking about feline feet?

The “cat’s paw” theory would impute a supervisor’s motive to an employer if the motive influenced the employer’s decision. In plain English, if a supervisor is a biased 💩, and your business accepts their 💩 recommendation to fire someone, the company will end up stuck in deep 💩.

For example, in this recent decision, a customer service representative took FMLA leave because she had a vision disorder and her father had cancer. About five months after approving the leave, her supervisor recommended her termination. The supervisor claimed that the plaintiff avoided new calls by telling customers that she would get additional information, putting the customers on hold, and chatting with coworkers about personal matters while the customers waited.

The supervisor characterized the plaintiff’s conduct as “call avoidance.” However, the plaintiff insisted that the supervisor was biased and only recommended her termination because she had taken FMLA leave. So, if the supervisor’s biased recommendation influenced the defendant’s decision to end the plaintiff’s employment, that would prove problematic.

As it turns out, however, the supervisor’s bias — even if true — didn’t matter.

Why?

First, the employer broke any causal chain between the supervisor’s alleged bias and any adverse employment action by directing other managers to independently investigate and decide whether to adopt the supervisor’s recommendation. The cat’s paw theory does not apply when independent decision-makers conduct separate investigations without relying on biased subordinates.

Second, the defendant had an appeal process through which the plaintiff could grieve the decision to terminate her employment. She got a fresh second bite at the apple. The plaintiff admitted that the grievance could have resulted in reinstatement.

Courts have held that the causal chain breaks when an independent decision-maker reviews the firing after it has already taken place. That post-termination review process helps to identify and unwind unwarranted termination decisions and sufficiently constrains any retaliatory animus that an immediate supervisor may have possessed.

For these reasons, the defendant prevailed.

And perhaps you can too by utilizing either or both of these safeguards when a supervisor recommends termination of employment.