In order to prove disparate treatment discrimination under federal employment laws, plaintiffs must demonstrate that the decision-maker in an adverse action was at least partially motivated by discriminatory intent. Federal courts recognize an exception to this rule where the actual decision-maker had no independent discriminatory animus but was influenced by another employee who did. These so-called “Cat’s Paw” cases find the employer liable for discrimination based on the false information provided by the influencing supervisor.
Employers may be able to defend against Cat’s Paw claims by showing that their performance review and decision-making process involved independent review by managers not subject to discriminatory influence. One way to demonstrate this independence involves the use of multilayer review of major personnel decisions. Instead of one manager making a final decision subject to possible influence, the disciplinary recommendation is sent for a second level of management or human resources review for independent consideration and confirmation of the legitimate, nondiscriminatory grounds for the decision.
Multilayer review of personnel decisions may work best in large companies with the management infrastructure available to permit separate reviews. Even with smaller employers, a second look at the evidence used to reach a final employment decision can help establish an argument that, at least at one level, the final decision was made or corroborated by persons not subject to influence by the allegedly biased manager.