November 17, 2021

Cat’s Paw Strikes Again!

I just mentioned cat’s paw cases in a recent webcast on retaliation and, “Voila” here it is again!  Here’s the scoop in this case.

For the last five years, an employee’s performance exceeded or “significantly exceeded” expectations. He was promoted and received bonuses. He was also the oldest member of his team. When a new manager joined the team, things changed. Team members, including the manager, gave the employee nicknames such as “Uncle,” “Young man,” and suggested he had “old skills.”

When the employee expressed his concerns about age discrimination to HR, the HR representative referred him back to his manager to have that discussion. When he did so, things got worse: tasks were given to other employees, contact dwindled, and the manager gave the employee the company’s second lowest performance rating.

So, the employee went to HR a second time, was again redirected to his manager. No investigation was initiated. The employee was subsequently reassigned to a new VP, who tells the employee in one of their very first conversations that the employee will be fired as part of a reduction in force. The employee then sues for age discrimination and retaliation.

The employer’s defense?  The VP had never before met this employee, did not know his age, had no animus against the employee, engaged in none of the alleged, age-based conduct, and had no knowledge about the employee’s complaints to HR.  So, how could the VP discriminate or retaliate against the employee based on information he did not know?

Answer: If the VP was the unwitting pawn of the manager (and possibly HR representatives!) who gave him the information and instruction to lay off this employee, then the company could be liable for their “animus, intent and proximate cause.”

Lessons Learned.

  1. Don’t delay; investigate today! When an employee expresses a concern about a particular individual, rather than redirecting the employee to that person, offer to serve as a mediator, facilitator or investigator.
  2. Keep your snarky comments to yourself. They are not civil, kind, and do not belong in the workplace. Humor is all well and good, but not at the expense of the person.  What might be welcome conduct today, often gets spun into evidence of harassment, discrimination, or some type of animus tomorrow.
  3. Be patient. Most HR professionals are well-known for asking lots of questions and for documentation. Cases like this are great examples of why. It is not to hassle the manager who wants to issue corrective action, fire, or layoff an employee. It is to ensure there are justified, business-related reasons for the proposed action. HR is management’s firewall, protecting you and the company.