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New Jersey Employment Attorney Discusses 'Cat's Paw' Liability for Discrimination and Retaliation Claims

The Cat, the Monkey and the Chestnut

There's an old fable about a cat, a monkey and a chestnut, which goes something like this: There are some chestnuts in a fire. The clever monkey wants them, but they're hot and he doesn't want to burn himself. He therefore persuades the cat, presumably less intelligent than the monkey, to retrieve the chestnuts for him, which the cat then does. The cat burns its paws and the monkey retrieves the chestnuts and makes off, leaving the cat with nothing but singed paws and the feeling of having been used as an unwitting pawn.

To suggest that this fable - which is much older than New Jersey's laws - represents a common feature of all human relationships is like saying water's wet. Throughout all of history, mankind at every level of inter-human relationships has experienced some degree of this paradigm. Either someone has been used as a cat's paw, or someone has been victimized by use of a cat's paw. At the end of the day, there's a reason old stories and fables strike such a chord; they touch on common human experience, across all cultures and all times.

So of course, it's inevitable that we'd encounter, as people, the use of a cat's paw in the place of employment. Yet it took several thousand years of human history before a federal court in the United States actually recognized the concept in Shager v. Upjohn, a 1997 Circuit Court of Appeals decision. In New Jersey, it took another eleven years for our Appellate Division to recognize the cat's paw theory, calling it the theory of "subordinate bias," in Kwiatkowski v. Merrill Lynch in 2008. While it's surprising that it took that long, it's a good thing that the court got there.

In that case, a gay man was terminated upon his supervisor's recommendation. He argued that his supervisor was biased against him because of sexual orientation. In fact, this turned out to be the case, as the evidence supported that conclusion. Yet it was only the supervisor's suggestion or request that the plaintiff be fired, not his decision. The request or suggestion was then sent to "upper management," which folk apparently not only had no bias against the plaintiff, but might not have even known the plaintiff was gay at all. Yet upper management had to officially "act" by approving the request/suggestion of the biased supervisor.

So to be clear, the man with the bias starts the process in motion but he doesn't finish it; management did. The company thus defended on the grounds that because the "biased guy" wasn't the guy that actually "officially" fired the plaintiff, there could be no discrimination. The biased person wasn't the "actor."

Obviously, that doesn't make any sense, and while it may have taken a few thousand years for the court to realize it, it's certainly black letter law in New Jersey now.

The court found, as the federal court did in Shager, that when someone with a bias (either a discriminatory or retaliatory bias) decides to start a process in motion which he or she knows is going to end in termination even if those who must "rubber stamp" the end result aren't part of the bias or the retaliatory motive, the company's going to be liable on common sense, and upon legal, grounds.

If one feels, therefore, that the person who "makes it happen" is the one with the bias or the retaliatory motive, the fact that unwitting third parties may stand between the biased individual and the victim isn't going to change the end result - which is that the company's liable - and that's reasonable, logical and fair.

And it's about time. All the clever little monkeys should be careful.

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