City of Modesto (2008) PERB Decision No. 1994-M (Issued on 12/19/08) and Regents of the University of California (Los Angeles) (2008) PERB Decision No. 1995-H (Issued on 12/19/08)
Last week PERB issued two decisions involving allegations of retaliation against employees for protected union activity. In both City of Modesto and Regents of the University of California, the Board applied the existing retaliation standard to dismiss the unfair practice charges. What is worth noting, however, is that both decisions discussed an important legal concept that many employers still don’t fully understand: “subordinate bias liability” or what employment lawyers commonly refer to as the “cat’s paw” liability.
To understand the issue, consider this example. Supervisor A dislikes an employee because she is a union job steward. Based on this anti-union animus, Supervisor A recommends that the employee be disciplined for poor job performance. Supervisor B is not aware that the employee is a job steward and harbors no anti-union animus. Supervisor B reviews the proposed discipline, and seeing nothing out of the ordinary, approves it. Is the employer liable for unlawful retaliation?
I believe that under PERB precedent, the answer is yes. Even though the ultimate decision-maker, Supervisor B, had no knowledge of the employee’s protected activity and harbored no anti-union animus, PERB has held that the unlawful animus of Supervisor A can be imputed to Supervisor B. In these situations, PERRB has held that unlawful animus may be imputed to high management officials where, even innocently, they rely on inaccurate and biased information of lower level management officials. (See State of California (Department of Corrections) (2001) PERB Decision No. 1435-S; State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S.) PERB refers to this doctrine as “subordinate bias liability.” It is also commonly referred to as the “cat’s paw” doctrine by the courts.
Real life situations are seldom as clear-cut as the hypothetical above. In many cases, even where lower-level supervisors are motivated by anti-union animus, the ultimate decision-maker will rely on other “non-tainted” factors and/or will have conducted an independent investigation. In those situations, what is the standard for imputing the animus of lower-level supervisors? The answer is not that clear.
In employment discrimination cases, the courts have been struggling with the cat’s paw doctrine for years. There is currently a split of authority among the federal circuits as to how to apply the doctrine. In Poland v. Chertoff (9th Cir. 2007) 494 F.3d 1174, the Ninth Circuit recognized this split and discussed three possible standards for imputing liability in these situations. The Poland court rejected a simple “but for” causation test because it would create expansive liability for employers. Similarly, the court rejected a standard that would impose liability only where the ultimate decision-maker “rubber stamps” the tainted decision. Instead, the court tried to take a middle ground approach:
“We hold that if a subordinate, in response to a plaintiff’s protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process. This standard is consistent with what we have suggested in previous Title VII retaliation cases . . . and with the law in a majority of the circuits. . .”
Neither City of Modesto nor Regents of the University of California discuss the exact standard that PERB will apply to impute unlawful animus to the ultimate decision-maker. Both cases merely affirm that PERB may impute such animus. In the Regents case, PERB did decline to follow NLRB precedent in this area and instead stated that, “one individuals’ experience will not be imputed to another unless it is warranted under the circumstances.” However, PERB has never thoroughly addressed those “circumstances.”
I believe that if ever confronted with the issue, PERB will follow the holding of Poland, since it is consistent with the majority of the federal circuits and also California law. (See Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95.) If so, it is vital for an employer to remember that it can avoid having the unlawful animus of a lower-level supervisor imputed to the ultimate decision-maker if it takes steps to neutralize the taint, for example, by conducting an independent investigation. There are also other ways an employer can neutralize or isolate any unlawful animus. The key, however, is recognizing the situation and taking pro-active steps.
P.S. The phrase “cat’s paw” refers to someone who is unwittingly used by another. It comes from La Fontaine’s Fable “The Monkey and the Cat,” in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. As the cat scoops the chestnuts from the fire one by one burning his paw in the process, the monkey eagerly gobbles them up, leaving none for the cat.