Cat’s Paw Evidence of Supervisor’s Racial Bias Admissible To Failure To Promote Claim

The “cat’s paw” evidence doctrine in employment discrimination cases refers to a situation in which a biased subordinate, who lacks decisionmaking power, influences the unbiased decisionmaker to make an adverse hiring decision, thereby obscuring the subordinate’s discriminatory intent. The doctrine was applied by the Sixth Circuit in Cobbins v. Tennessee Dept. of Transportation, No 07-6491 (April 2, 2009), where the court reversed a jury trial verdict based on the exclusion of such evidence at trial.

Gregory Cobbins, an African-American male, was a ten year employee of the Tennessee Department of Transportation and sought promotion to a supervisor position. He was unsuccessful and one of the explanations for the decision was that the successful candidate had no record of disciplinary action, while Cobbins “had several oral and written warnings in his work file.”  The warnings were all received between 1998 and 2002 by a former supervisor, Yocum. Cobbins claimed in a prior lawsuit that these warnings were the product of race discrimination by Yocum. The prior lawsuit was dismissed without a judgment on the merits of Cobbins’ claim. In this case, he claimed that these earlier discriminatory acts by Yocum deprived him of the opportunity to compete fairly for the promotion to the supervisor position.

The “cat’s paw” theory in employment discrimination litigation arises in a situation where an adverse hiring decision is made by a supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who was motivated by such bias.  Here, Cobbins sought to show that Yocum’s past discriminatory acts, which resulted in warnings in his file, influenced the decisionmaking process that resulted in Cobbins’ being passed over for promotion unfairly:

Plaintiff seeks only to demonstrate that certain conduct and actions of his supervisor at that time impacted his work record and promotion chances; and such evidence is, therefore, relevant in this case.

This case represents an often-encountered scenario: the discriminatory bias of a supervisor inflicts permanent damage to an employee’s career by packing his or her file with unfounded or unfair warnings.

Robert L. Abell
www.RobertAbellLaw.com

Supreme Court Perpetuates Harms of Pregnancy Discrimination

The United States Supreme Court on Monday in its decision in AT & T Corp. v. Hulteen perpetuated the decades-in-accruing harms of pregnancy discrimination. The Court ruled 7-2 that working women must continue to bear the harm and the lower pension benefits inflicted by systematic pregnancy discrimination prior to enactment of the Pregnancy Discrimination Act in 1979. 

The case arose from the method by which AT & T calculated service credit time toward determining an employee’s pension benefits. Basically, an employee received service credit time toward his or her pension for all leaves of absence caused by medical conditions, except those caused by pregnancy. The plaintiffs, four women who were or are life-long employees of AT & T, claimed that this method exclusing pregnancy leave from the calculation of service credit time discriminates against them based on their female sex.

The Court rejected their argument based principally on its 1976 decision in General Electric Company v. Gilbert, 429 U.S. 125 (1976), which held that a disability benefit plan excluding disabilities related to pregnancy was not sex-based discrimination within the meaning of Title VII. The Gilbert decision departed from the decision of every appeals court that had ruled on the issue. Just two years later, Congress enacted the Pregnancy Discrimination Act “so as to make clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions.”

But the Court ruled that the Pregnancy Discrimination Act did not help, because the Court majority held that the PDA applied only prospectively and did not ameliorate the discriminatory practices that Gilbert sanctioned. And so 31 years after the PDA was enacted, the Supreme Court disregards Congress’s efforts to correct the Gilbert decision and perpetuates the discrimination that the PDA was intended to eliminate.  

Robert L. Abell
www.RobertAbellLaw.com

Mother of Four Denied Promotion; Stereotyping and “Sex Plus” Discrimination

“Sex plus” discrimination occurs where an employer classifies employees on the basis of sex plus another characteristic. In a “sex plus” case not all members of a disfavored class are discriminated against; rather, a “sex plus” case arises where an employer discriminates against a subclass of men or women instead of the entire class. An example of “sex plus” discrimination is presented by the recent decision of the United States Court of Appeals for the First Circuit in Chadwick v. Wellpoint, Inc., where the plaintiff, a mother of four, was passed over for promotion, despite having better qualifications, and alleged that the subclass being discriminated against based on sex was women with children, particularly young children.

Laurie Chadwick, after nearly ten years employment at Wellpoint, applied for promotion to a management position. Chadwick had been performing for some time several of the position’s responsibilities, was encouraged by her supervisor to apply for the promotion, and possessed a seeming very important credential: a recent performance evaluation scoring her 4.40 out of a possible 5.00 points. Chadwick and another female were the two finalists. Chadwick had about six years more pertinent experience and her most recent performance review was superior (the other finalist received a 3.84 out of a possible 5.00 points on her review compared with Chadwick’s 4.4 out of a possible 5). Interviews of the finalists was the final step in the process. The final decision maker was a female, Nancy Miller, who graded the other finalist higher than Chadwick on the interview and subsequently offered the promotion to the other finalist.

At the time of the promotion decision, Chadwick was the mother of four children: an 11 year old son and 6 year old triplets in kindergarten. Despite the burdens that four children necessarily carry, the court noted that there was “no allegation, insinuation, or for that matter evidence that Chadwick’s work performance was negatively impacted by any child care responsibilities she may have had.”

After she was passed over for the promotion, Chadwick filed suit claiming that Wellpoint had denied her the promotion “based on the sex-based stereotype that mothers, particularly those with young children, neglect their work duties in favor of their presumed childcare obligations.” The district court granted WellPoint a summary judgment.

The principal evidence supporting Chadwick’s claim was as follows: (a) she was significantly better qualified for the promotion than the other finalist who was selected; and, (b) statements made by management around the time of the promotion decision indicated that sexual stereotyping was a factor including the following: 

• Two months before the decision was made, Miller, the decisionmaker, upon learning of Chadwick’s four children, sent an e-mail to Chadwick stating, “Oh my – I did not know you had triplets. Bless you!”

• A manager that interviewed Chadwick during the promotion process, in response to her answer to a question replied, “Laurie, you are a mother[.] [W]ould you let your kids off the hook that easy if they made a mess in [their] room[?] [W]ould you clean it or hold them accountable?”

• Miller, after informing Chadwick that she had been passed over, told her: “It was nothing you did or didn’t do. It was just that you’re going to school, you have the kids, and you just have a lot on your plate right now.”

• Miller also told Chadwick that “if [the three interviewers] were in your position, they would feel overwhelmed.”

• Miller also advised Chadwick that, “there would be something better down the road,” and that Chadwick would look back and say, “It’s a good thing that the opportunity didn’t work out because I’m happier with this down the road.”

In defense, Miller on behalf of Wellpoint, claimed that she passed Chadwick over for a promotion because she had “interviewed poorly” and that she had only told Chadwick that she had “too much on her plate” in an attempt to “soften the blow.” Wellpoint also asserted that the other finalist was the mother of two children, an argument that the court disregarded, observing that “discrimination against one employee cannot be remedied solely by non-discrimination against another employee in that same group.”

The Court noted that the United States Supreme Court had identified sex-based stereotypes as an impermissible form of discrimination in the Price Waterhouse case, where a woman was denied partnership in an accounting firm for which she worked and was told by the partnership that she was too aggressive and macho, should attend a charm school, and should dress and behave more femininely. There, the Supreme Court pointedly observed, “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group.”

 

A number of decisions applied Price Waterhouse’s central holding, standing for the the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibility. An employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of anti-discrimination laws in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities. Examples include the following:

 

• Sex-stereotyping shown where employers stated that a woman could not “be a good mother” and work long hours, and that a “woman would not show the same level of commitment …because [she] had little ones at home.” Back v. Hastings on Hudson Union Free School District, 36 F.3d 107 (2^nd Cir. 2004).

 

• Sex stereotyping found where decision maker admitted he did not promote plaintiff “because she had children and he did not think she would want to relocate her family, though she hadn’t told him that.” Lust v. Sealy, Inc., 383 F.3d 580 (7^th Cir. 2004).

 

• Sex-based discriminatory animus shown where direct supervisor questioned “whether [the plaintiff] would be able to manage her work and family responsibilities.” Santiago-Ramus v. Centinnial P.R. Wireless Corp., 217 F.3d 46 (1^st Cir. 2000).

 

• In a Pregnancy Discrimination Act case evidence of discrimination shown where supervisor told employee that she was being fired so that she could “spend more time at home with her children” because that statement “invoked widely understood stereotypes the meaning of which is hard to mistake.” Sheehan v. Donlan Corp., 173 F.3^d 1039 (7^th Cir. 1999)

The Court observed that Miller’s explanation to Chadwick that, “it was nothing you did or didn’t do. It was just that you’re going to school, you have the kids, and you just have a lot on your plate right now” was particularly telling, observing as follows:

After all, the essence of employment discrimination is penalizing a worker not for something she did but for something she simply is.

The Court also emphasized a jury’s prerogative to find facts. First, the Court noted that Miller had explained the non-promotion in one way to Chadwick: that she had too much on her plate with her kids and school and then later in a very different way, that Chadwick had performed poorly on her interviews. A jury’s prerogative, the Court emphasized, would be to question the veracity of Miller’s second explanation “given that Chadwick was an in-house, long-time employee who had worked closely with her interviewers, had received stellar performance reviews, and was already performing some of the key tasks of the team lead position.” This jury prerogative could “rightly question whether brief interviews would actually trump Chadwick’s apparently weighty qualifications [.] The case was remanded for trial.

 

Robert L. Abell

www.RobertAbellLaw.com

 

 

Sex Discrimination Claim Not Defeated By Absence of Discrimination Directed At Other Women

Does evidence that a female collegue of an employee claiming sex discrimination defeat the claim? It does not ruled the United States Court of Appeals for the Tenth Circuit  in Strickland v UPS, No 07-1082 (February 24, 2009). The court’s ruling indicates how widely misunderstood this simple point is among judges and some lawyers.

Strickland was a sales representative for UPS. Her supervisor suggested that she take a medical leave and she did. But when she returned she was accused of having “let down the company,” compelled to attend numerous and frequent meetings with her supervisor and district manager, Donnell, which interrupted her sales work, compelled to draw up sales plans that other salespeople were not even though she had higher sales figures, and subjected to constant performance evaluations. She had five male co-workers and one female co-worker, Harper. All testified that Strickland was treated differently than they were, although Harper testified that she was not treated differently than the men. Strickland was eventually constructively discharged from her employment and filed suit claiming sex discrimination.

The court ruled that Strickland’s sex discrimination claim “does not fail simply because an employerdoes not discriminate against every member of the plaintiff’s sex.” Such evidence may weaken the claim, the court ruled, but does not defeat it.

Robert L. Abell

www.RobertAbellLaw.com