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Do you have a malicious monkey in your workplace?  Employers can be liable for discrimination when they act on recommendations based on a subordinate’s discriminatory animus.  This is called the “cat’s paw” theory of discrimination.  The name comes from a 17^th century French fable in which a monkey persuades a cat to take roasting chestnuts from a fire.  As the cat takes the chestnuts, burning its own paw, the monkey grabs the chestnuts for himself.  The cat’s paw theory applies to situations in which an employee, like the monkey in the fable, dupes an unwitting agent into carrying out the employee’s discriminatory purpose.

In a case of first impression, the Seventh Circuit ruled that in cases brought under § 1981 of the Civil Rights Act of 1866, an employee who causes the employer to discriminate – the “malicious monkey” – can be held individually liable.  Unfortunately, just as employers are often liable for unapproved acts of their employees, the employer is not off the hook merely because the monkey has individual liability.  It is important to note that this case was decided under § 1981, a race discrimination statute that is not limited to employment situations.  It is unlikely a court would allow for individual liability for the malicious monkey under employment discrimination statutes like Title VII or the Americans with Disabilities Act because the individual is not typically an “employer” under those statutes.

Employers should be concerned about individual liability for employees, particularly where they have agreed to indemnify employees for actions related to their employment.  Individual liability can create more pressure in litigation because the employee’s personal assets are on the line. 

How can you avoid being duped by a malicious monkey at your workplace?  Ensure that the employees responsible for carrying out employment actions, especially discipline and termination, understand in each and every case why they are taking the action at hand.  Require documentation of incidents, investigate allegations thoroughly, and take note of situations that “don’t seem right.”  Is one supervisor constantly writing up African-American employees?  Is the disciplinary action coming on the heels of the employee’s harassment complaint?  Even an employer who was duped can be liable for discrimination.  It is your job to keep the malicious monkeys at bay.

 Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.