Client Alert - Employment Law Update
Federal Appellate Court Extends Theory of Liability to Individuals in Retaliation Cases
The U.S. Court of Appeals for the Seventh Circuit recently extended "Cat's Paw" liability to management and human resource employees in certain cases brought under a law prohibiting retaliation in the workplace based on race.
The case of Smith v. Bray, No. 11-1935 (May 24, 2012) began when Darrel Smith filed suit against his former employer, his immediate supervisor, and a human resource manager after being terminated. He alleged that he was subjected to racial discrimination at the hands of James Bianchetta, his immediate supervisor. He also claimed that Denise Bray, the HR manager, had persuaded her superiors to fire him after he complained about the harassment. Bray had no role in the ultimate decision to terminate Smith, who filed suit under Section 1981, a Civil War-era law that prohibits racial discrimination in the making, performance, or termination of contracts.
As described in an earlier Client Alert, this type of liability is termed "Cat's Paw" after the fable of a monkey who gets a cat to do his dirty work. Although the U.S. Supreme Court had previously found that it could be used to establish an employer's liability under certain employment laws, it had not been applied against individuals in Illinois. The Seventh Circuit Court of Appeals, which covers Illinois, Wisconsin, and Indiana, has done just that. It held that a subordinate with a discriminatory motive, who intentionally causes an unknowing superior to take action against an employee for a discriminatory or retaliatory purpose, can be personally liable to a plaintiff.
What to Do
This decision allows plaintiffs asserting racial discrimination to sue not only their employers, but also any managers or HR employees, who participated in the decision making process. The prospect of individual liability for these kinds of employees places renewed importance on properly managing termination decisions. This includes considering any potential bias of those providing input when an employee is terminated.
If you would like more information about this decision, or have questions about your employment policies and practices in general, please contact Mr. Gonzalez at 312-558-9779 or at egonzalez@elvisgonzalezltd.com.
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