What does a cat’s paw have to do with managing human resources at your organization? Well, it begins with a fable about a monkey who persuades a cat to remove roasting chestnuts from smoldering embers. The cat burns his paw in the process and, you guessed it, the cat never gets his share of the chestnuts; the monkey runs off with them all.
So what does this 17th century French fable have to do with HR? The American Heritage Dictionary defines the term “cat’s paw” as a person used by another as a dupe or tool. Earlier this year, the Supreme Court issued a ruling based on cat’s paw theory. The case involved an army reservist, Vincent Staub, who worked at a hospital. After review of his personnel file, which included a prior disciplinary action, and after speaking with his supervisors, the HR Manager made the decision to terminate him.
Staub sued for wrongful discharge, contending that he had been fired in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA) based on time off for military service. The Supreme Court agreed with Staub that the prior disciplinary action in his personnel file was based on biased reporting by his supervisors who maintained an anti-military mindset. They further determined that these biased supervisors had influenced the final decision-maker, the HR Manager, when they caused the prior discipline to be entered into Staub’s records. So, while the HR manager herself showed no anti-military bias, she relied on information that was discriminatory in making the decision to terminate. Under cat’s paw theory, she served as the dupe used by the supervisors.
So what does this mean for your organization? Well, clearly, one should tread carefully with all adverse employment actions. This means thorough fact-finding investigations. You shouldn’t necessarily take a supervisor’s word alone without further digging. Review all anti-harassment policies and all grievance and investigative procedures. Train supervisors in all your policies but particularly in nondiscrimination and anti-harassment. Supervisory performance reviews should reflect how well supervisors coach and develop staff. There are never full guarantees against lawsuits, but implementing sound policies, procedures and training will keep your risk to a minimum to keep you from getting burned!
Not unexpectedly, the Supreme Court ruled Monday that the discrimination bias case brought against Wal-mart did not qualify for proceeding further as a class action suit. The case grew from a 2001 suit brought by an individual, Betty Dukes, and involves accusations that the retail giant pays women less and gives them fewer promotions than their male counterparts.
The court did not rule on whether women have been discriminated against, only that they could not sue Wal-mart as a class. The justices split 5 -4 on ideological lines on part of the decision but unanimously found that the plaintiffs’ lawyers had improperly sued under a certain section of class action rules that was not primarily concerned with monetary damages.
This Supreme Court decision reverses a prior ruling by the 9th District Court of Appeals of San Francisco. If allowed to proceed as a class action suit on behalf of 1.6 million current and former female employees, Wal-mart’s already substantial costs would likely have soared into the billions of dollars and it is likely that similar suits would have cropped up against other organizations. While this ruling is a clear victory of sorts for the big box giant and perhaps other large businesses, litigation by at least two of the several plaintiffs may continue individually meaning Wal-mart is not yet off the hook, though it is a decidedly smaller hook than it would’ve been. Wal-mart claims that its policies prohibit discrimination and that it has taken steps since the suit was filed to address problems.
It looks as though the Supreme Court justices are unconvinced that the largest discrimination case in history, brought by several women against Wal-Mart, should have been certified as a class action suit by a lower court. That certification by the 9th Circuit court includes every woman employed for any period of time during the past decade at any of Wal-Mart’s 3400 stores. The upshot thus far seems to be that the argument that the claims are not similar enough to be typical is prevailing and that the cases should have instead been brought in separate trials. Law professor, Kent Greenfield, writes in the Huffington Post as to what the justices, Kennedy in particular, may be missing about the power of corporate culture. For more information click here to visit the Huffington Post web site.
Whatever the outcome, Wal-mart won’t be the last organization fending off allegations of a pervasive culture of discrimination. Six women filed suit on March 21 against Bayer Corporation citing discrimination based on gender, taking leave protected by federal and state laws, as well as pregnancy status and that of primary-caregiving mothers. The six claim to represent hundreds of other women and their allegations, if true, seem overtly egregious. For more details on the Bayer case, see the Society for Human Resources online news article by clicking here.
Of course the best way to avoid getting into a similar situation is to train, train, train your managers on these and all your policies and practices: sexual harassment and other harassment awareness, proper interviewing, FMLA, and all of your non-discrimination policies and practices. As with all important communications, the message and culture of non-discrimination comes from the top so top executive support and messaging are key. For more information or help addressing these issues, HRSentry.com provides up-to-date links to laws and legal information, best practice information, sample policies and kits.
Using social media sites such as LinkedIn or Facebook can be an effective way to find new employees. Social media is an especially effective tool for hiring when you are looking for tech and internet-savvy employees. However, be aware that the candidate pool becomes limited when using social media and some of the best candidates may not be on the social media site your company is using to recruit. In addition tot his, depending too much on social media sites can leave your company or organization vulnerable to race and age discrimination lawsuites.
Hiring through social media is a great way to find qualified applications through either personal referrals, or just by posting a job opportunity on a site such as LinkedIn. The biggest issue with hiring through social media is the potential to unknowingly discriminate against older and non-white individuals. According to a study by Quantcast Corp, only 2% of LinkedIn users are Hispanic and 5% are black. This means that if your company is using LinkedIn for all of their hiring, the candidate pool could be heavily skewed towards young, white individuals. In addition to this, screening applications via social media can also create legal issues. Visiting an applicant’s social media site may make you privy to all sorts of private details about the individual such as religion, age, sexual orientation, and more, that they are not required to reveal on job applications due to federal laws.
Here are some suggestions for how to deal with hiring through social media from The HR Specialist:
“Draft a policy for social media recruiting and screening.
Periodically analyze applicant pools resulting from social networking sites to ensure they aren’t too homogeneous.
Keep records of social media recruitment efforts to avoid ending up with a lack of documentation if a discrimination lawsuit strikes.”
Potential job seekers also may want to be aware of what they post on their social media sites, and know that potential employers may be screening applicants through social media.
HR Made Simple Users can log in to access more information on Equal Opportunity Employment, as well as Best-Practices for hiring.
Free Webinar: Join us on May 12th at 2pm for the “EEOC – Discrimination and Harassment Laws” webinar, presented by Brenda JM Sabin, CBP HRSentry’s Director of Operations and Site Administration.The EEOC governs many Federal laws and regulations as they pertain to discrimination and harassment. Discrimination and harassment can occur from the time an individual applies for a position with your organization, through the orientation process and the employment time, right up to the termination of that employee. Do your managers and supervisors understand how important these laws are? Do you? Learn the complexities of the discrimination and harassment laws and learn to protect your organization. Click here for more information on how to sign up for the “EEOC – Discrimination and Harassment Laws Webinar”.
