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Employers Can No Longer Avoid Retaliation by Isolating the Decision Maker


One hurdle employees frequently need to overcome in retaliation cases is establishing retaliatory motives. That hurdle is made more difficult when the person who "technically" makes the challenged employment decision is not the person with the obvious retaliatory animus. In other words, if your supervisor retaliates against you because you complained about his discriminatory harassment, your employer cannot escape liability by claiming that a neutral HR director, for instance, ultimately made the official decision to terminate you.

What Is "Cat's Paw?"

It is common for employers who are faced with discrimination or retaliation charges to argue that the person who made the employment decision was out of the loop and could not have had any discriminatory or retaliatory intent. The argument, then, is that the actual decision maker could not have acted illegally; yet the real discrimination or retaliation by the supervisor is simply masked. In employment discrimination, the term "cat's paw" essentially means that the biased employer uses a formal decision maker as the scapegoat for his or her discriminatory actions.

Zamora v. City of Houston

The Fifth Circuit Court of Appeals issued a recent decision addressing the "cat's paw" theory. Zamora v. City of Houston, decided on August 19, 2015, involves a police officer who was suspended for 10 days following an Internal Affairs investigation. Although the chief of police made the formal decision to suspend him, it was his direct supervisors who had exhibited retaliatory animus. The Fifth Circuit decided that Zamora's suspension was not the result of an Internal Affairs investigation. Instead, it resulted from an investigation which was prompted by his complaint about his supervisors.

What Is the Business Judgment Rule?

The business judgment rule states that courts should not substitute their judgment for the good-faith decisions, experience, and training of business executives when analyzing challenged employment actions. The purpose is to encourage business executives to take prudent risks for the benefit of their companies, without fear of personal liability, should their decisions ultimately cause harm to the company.

Does the Business Judgment Rule Play a Role?

The business judgment rule serves to protect business officers from personal liability by providing a common law defense, preventing courts from second-guessing the appropriateness of a particular business decision. This rule would allow an employer to give credit to the statements of other employees in making employment decisions. The employer would also be immune from liability if it based a decision on a statement that it believed in good faith was accurate.

The Zamora Decision and Its Effect on the Business Judgment Rule

It would seem that the decision in Zamora contradicts the business judgment rule and the "honest belief" doctrine. Indeed, the cat's paw theory appears to be a contradiction to these other rules; however, the Zamora decision attempts to reconcile the conflict. The court explained that the supervisors were able, with their retaliatory statements, to turn the investigation against them into a recommendation that one of their accusers be disciplined instead. The Court decided that liability could not be avoided this way.

Take a stand against employer discrimination today! Call Michel | King or fill out a case evaluation form to discuss your case with an employment law attorney in Birmingham and take appropriate legal action.

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