Sometimes employers suspect that an otherwise valuable manager has given biased advice in recommending firing an employee. In the case when you, your HR department, or a supervisor thinks that trouble lies ahead in taking that advice, they must consider the Cat’s Paw Legal Doctrine. Based on a fable about a monkey getting a cat to pull its chestnuts out of a fire, it states that liability for discrimination exists where the nominally independent decision maker is influenced by others with prejudice, and adopts their views with no exercise of judgment. Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011).
In a situation with a protected category of employee (age, sex, minority, etc.), some consider establishing a clear record of how the independent decision maker made a decision based on an unbiased investigation of all witnesses, etc to the employee performance problems. Some suggest giving the employee an opportunity to present his or her side and question the evidence, and perhaps even those making performance claims, etc. See a cat’s paw situation: McKenna v. City of Philadelphia, No. 09-3567 (3rd Cir. Aug. 17, 2011).
Having an Employment Counsel may make sense to avoid expensive legal and other costs down the road. Difficult employment situations can come up at any time and lead to claims that might have been avoided or mitigated.