Cat’s Paw Theory: “Boss set me up!”

By Bryan A. Chapman, Esquire

The Cat’s Paw theory applies to some discrimination and retaliation cases.  If an employee’s supervisor, who is both biased and untruthful, convinces the employer to take an adverse action (i.e. termination, demotion, denial of promotion, suspension, etc.) against the employee, the employer could be found liable for discrimination or retaliation under the Cat’s Paw theory.  Staub v. Proctor Hospital, 562 U.S. 411 (2011)

The U.S. Supreme Court, in Staub v. Proctor Hospital, 562 U.S. 411 (2011), defined an employer’s liability under the Cat’s Paw theory:

  1. a non-decision maker, who is the employee’s supervisor, is motivated by discriminatory (or retaliatory) intent;
  2. the biased non-decision maker performs an act intended to cause the employee to suffer an adverse employment action (i.e. termination, demotion, denial of promotion, suspension, etc.); and,
  3. the biased non-decision maker’s act is a proximate cause of the adverse action.

The term Cat’s Paw comes from a French fable.  A monkey and a cat are sitting in front of a fire.  Chestnuts are roasting in the fire and the monkey wants a chestnut.  So, the monkey convinces the cat to fetch a chestnut out of the fire.  The cat fetches a chestnut but burns his paw in the process.  Meanwhile, the monkey eats the chestnut.

An employer can be found liable for discrimination or retaliation, even if the decision maker is not biased.  Liability can be established if the decision maker relies on a non-decision maker who is biased and untruthful.

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Heightened Scrutiny: Employers look for a legitimate reason to hide retaliation.

By Bryan A. Chapman, Esquire

Retaliation occurs when an employee complains about workplace discrimination and is then targeted for harsher treatment by their employer.  Harsher treatment includes, but are not limited to, refusal to hire, demotion, refusal to promote, harassment, negative performance evaluations, reprimands, termination or a change in hours.  The most frequent form of retaliation is disciplinary action or termination.

An employee may complain that retaliation occurred when the employer “papered” their personnel file with write-ups and negative evaluations after they complained about workplace discrimination.  In its defense, the employer may argue that retaliation did not occur because the write-ups and negative evaluations were based on the employee’s poor job performance or misconduct.

Even if the write-ups and negative evaluations were based on the employee’s poor job performance or misconduct, retaliation can still occur if the derogatory documentation was a result of “heightened scrutiny”.  Under heightened scrutiny, the employer observes the employee more closely than it otherwise would while waiting for opportunities to discipline the employee. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)

In a case of heightened scrutiny, an employer acts like a spider patiently waiting for unsuspecting prey to become entangled in its web.

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ADA: Disability Harassment In The Workplace

By Bryan A. Chapman, Esquire

Employers have an affirmative duty to keep the workplace free of disability related harassment. Under the Americans with Disabilities Act (ADA), employers have an affirmative duty to keep the workplace free of disability related harassment. Fox v. General Motors Corporation, 247 F.3d 169 (4th Cir. 2001) (A fact finder could conclude from this evidence that the harassment Fox experienced was frequent, severe, physically harmful, and interfered with his ability to perform his job. In other words, Fox presented evidence of a workplace environment that a reasonable person could easily find hostile.)

  • If a supervisor engages in disability related harassment that results in a hostile work environment, to escape liability, an employer must demonstrate that: 1) it took reasonable steps to prevent and to quickly stop harassing behavior, and 2) the employee unreasonably failed to take advantage of the employer’s efforts to prevent or stop the harassing conduct or to avoid harm.
  • If a supervisor engages in disability related harassment that results in an adverse employment action (demotion, denial of promotion, suspension, termination, etc.), the employer has no affirmative defense.
  • If a co-worker engages in disability related harassment that results in a hostile work environment, an employer is liable if it knew or should have known about the harassment and it failed to take immediate and appropriate corrective action.
  • If a non-employee (e.g. customer) engages in disability related harassment that results in a hostile work environment, an employer is liable if it knew or should have known about the harassment and it failed to take immediate and appropriate corrective action.

In order to prevail on a disability harassment claim, an employee will have to prove that they:

  1. are disabled or regarded as being disabled;
  2. were subjected to unwelcome harassment;
  3. the harassment was because of their disability;
  4. the harassment affected a term, condition or privilege of employment; and
  5. the employer knew, or should have known, of the harassment and failed to take prompt remedial action.

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“Papering” an employee’s personnel file: Dr. Jekyll becomes Mr. Hyde

By Bryan A. Chapman, Esquire

“Papering” an employee’s personnel file: Dr. Jekyll becomes Mr. Hyde

Employers are advised to document the job performance of their employees. The documentation of job performance is particularly important when an employer is accusing an employee of poor job performance.  Write-ups and negative job performance evaluations can justify adverse actions, such as, denial of promotion, demotion, or termination.

However, unjustified write-ups and negative job performance evaluations may be evidence of discrimination and retaliation.  A careful examination of the personnel file portrays an employee who goes from being Dr. Jekyll to Mr. Hyde: a good employee suddenly becomes a bad employee.  This can raise suspicion and expose an employer to liability.

“Papering” occurs when an employer deliberately packs an employee’s personnel file with unjustified write-ups and negative job performance evaluations in order to justify an adverse action.  For instance, an employer can “paper” an employee’s personnel file by the following methods:

  • An employer may hold the employee to a higher standard than “similarly situated employees”.
  • An employer may scrutinize an employee.
  • An employer may singled out the employee for criticism or disciplinary action.
  • An employer may create a hostile work environment that interferes with the employee’s ability to perform their job.
  • An employer may solicit criticism of the employee from their co-workers and supervisors.
  • An employer may incite the employee’s co-workers and supervisors against them.
  • An employer may deliberately give the employee false write-ups and negative job performance evaluations.

Employers can use “papering” to cover-up discrimination and retaliation. Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“…he received much lower performance evaluations than he had received before filing his employment discrimination charge…  There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports, including two written reprimands.”); Etefia v. East Baltimore Cmty. Corp., 2 F.Supp. 751 (D. Md. 1998) (the court determined that the issue of whether documentation of the employee’s job difficulties was part of a plan to terminate him based on discrimination precluded summary judgment.)

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Teleworking is a win-win for workers and employers.

By Bryan A. Chapman, Esquire

Teleworking is a growing trend. Technology is making it possible. COVID-19 is a major catalyst. And, Big Tech is leading the way.

In response to COVID-19, in early March 2020, major tech firms, such as, Twitter, Facebook, Microsoft, Amazon and Google, were the first to allow their West Coast workers to work from home. Other employers, both private and public, followed the example of the major tech firms. Teleworking may have slowed the spread of COVID-19 in California’s Bay Area.

Despite pressure to reopen the economy, major tech firms have embraced teleworking for the time being. Social distancing and the health of their employees are major concern.

Mark Zuckerberg said half of Facebook’s 45,000 workers could be teleworking in the next 5 to 10 years. Twitter will allow its workers to permanently work from home. The tech industry’s acceptance of teleworking is likely to have a ripple effect in other industries.

Working from home will particularly benefit workers who have disabilities that could be exacerbated by COVID-19 exposure at the workplace. Older workers with underlying health conditions, such as, hypertension, diabetes, heart disease, etc., are especially vulnerable to COVID-19. For this group, a COVID-19 infection can be fatal.

Under the Americans with Disability Act (ADA), disabled workers can request a reasonable accommodation and employers may be obligated to provide a reasonable accommodation, provided it does not cause an undue hardship. Teleworking is the ideal reasonable accommodation for many disabled workers.

Economically, employers who adopt teleworking could reduce their office related expenses. Meanwhile, workers who telecommute could eliminate the hassle and expense of traveling to work on a daily basis.

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COVID-19: Employment Discrimination

By Bryan A. Chapman, Esquire

In the spring of 2020, COVID-19 caused massive disruption in the United States. Within a few months, millions of workers became unemployed due to COVID-19 related layoffs. According to the U.S. Labor Department figures, in April 2020, the number of unemployment workers exceeded those of the Great Depression, and Hispanics and African Americans workers were especially impacted. COVID-19 related layoffs disproportionately affected older and disabled workers.

According to AARP, when the overall U.S. unemployment rate spiked from 4.4% in March to 14.7% in April, the unemployment rate for women 55 and older rose even more: from 3.3% to 15.5%. The unemployment rate for men 55+ also soared, though a little bit less, from 3.4% to 12.1%.

Some employers see COVID-19 related layoffs as an opportunity to eliminate older workers. To these employers, older workers represent higher salaries and higher expenses due to insurance costs and paid time off due to illness. Some employers may have a similar attitude about disabled workers.

According to a May 2020 Bureau of Labor Statistics (BLS) Jobs Report, the number of working-age people with disabilities who were employed decreased by 950,000 between March and April (from 4,772,000 to 3,827,000), a 20 percent reduction.

Nonetheless, federal workplace anti-discrimination laws still apply. A worker can not be discrimination against and/or harassed based on their race, sex, national origin, religion, age, or disability.

The U.S. Equal Employment Opportunity Commission (EEOC) specifically warned employers about discriminatory layoffs. According to the EEOC, an employer should “review the process to determine if it will result in the disproportionate dismissal of older employees, employees with disabilities or any other group protected by federal employment discrimination laws”.

COVID-19 layoff can facilitate sexual harassment. Supervisors can use the threat of a COVID-19 related layoff to force subordinates to submit to unwanted sexual advances.

The earliest cases of COVID-19 occurred in China. As a result, Asian and Asian American workers have become targets for workplace discrimination/harassment.

Discrimination

Employers can deliberately use COVID-19 as a pretext to discriminate against and/or harass workers based on their race, sex, national origin, religion, age, or disability. Here are examples of illegal workplace discrimination:

1. you are laid off, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

2. you are denied a promotion or increase in pay, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

3. you are demotion or given a reduction in pay, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

4. you are given an undesirable assignment or shift, while workers of a different race, sex, national origin, religion, age, or without a disability are not; and,

5. you are being verbally or physically harassed, while workers of a different race, sex, national origin, religion, age, or without a disability are not.

Retaliation

Federal workplace anti-discrimination laws also prohibit retaliation. Retaliation occurs when a worker is mistreated because they complained about discrimination. Here are examples of retaliation:

  1. undesirable transfers

2. unwarranted disciplinary action

3. harassment

4. refusal of deserved promotion or pay increase

5. demotion or pay reduction

6. termination of employment

Retaliation occurs when an employer takes an adverse action against a worker that is designed to stop a worker from complaining about discrimination/harassment. The adverse action should occur shortly after the worker complains.

Consult an attorney

If you are a victim of discrimination or retaliation, consult an experienced civil rights attorney.

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COVID-19: The ADA and Workers with Mental Disabilities.

By Bryan A. Chapman, Esquire

America is reopening as states and cities are lifting stay at home orders. Most people are eager to get back to work, but there is stress and anxiety over increased COVID-19 exposure. COVID-19 is causing a global mental health crisis.

Some workers suffer from a mental disability that will be exacerbated by returning to work during the COVID-19 pandemic. Under the Americans with Disability Act (ADA), workers with a mental disability may qualify for a reasonable accommodation.

The ADA applies to non-federal government workers who have a qualifying mental disability. Under the ADA, workers with a mental disability have the right to request a reasonable accommodation from their employer. The employer is legally obligated to provide a reasonable accommodation provided doing so does not cause an undue hardship for the employer. For instance, a worker whose mental disability is exacerbated by COVID-19 exposure at work might request telework as a reasonable accommodation. If telework is not an option, the employer may provide other reasonable accommodations, such as:

  1. temporary job restructuring of marginal job duties
  2. temporary transfers to a different position
  3. modifying a work schedule or shift assignments
  4. temporary changes to workload
  5. longer time to complete tasks
  6. flexible hours, later start time, more flexibility concerning attendance
  7. personal leave

Under the ADA, mental illness and disorders, such as, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder are mental disabilities that could qualify for a reasonable accommodation.

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COVID-19: Workers have legal protection from workplaces that can cause serious imminent harm.

By Bryan A. Chapman, Esquire

Workers should not have to risk their health in order to earn a living. There are federal laws, as well as state and local laws, that protect workers from workplaces that can cause serious imminent harm. State and local laws vary, but some state and local laws offer workers more protection than federal laws. Due to the coronavirus pandemic, many states and cities have expanded their protection laws. For example, Michigan prohibits employers from firing workers who stay home for certain reasons related to the coronavirus pandemic.

Americans with Disabilities Act (ADA)

Workers with a disability (hypertension, diabetes, heart disease, etc,) that puts them at higher risk from COVID-19 can request a reasonable accommodation that reduces their exposure to COVID-19 under the Americans with Disabilities Act (ADA). Under the ADA, employers are required to provide a reasonable accommodation, as long as, doing so does not cause an undue hardship. The worker and their employer must engage in an interactive process. A worker who believes their employer has violated their ADA rights can file a discrimination claim with the Equal Employment Opportunity Commission (EEOC). Workers are protected from retaliation, such as, being fired or demoted.

The Occupational Safety and Health Administration (OSHA)

The Occupational Safety and Health Act of 1970 ensures that private sector workers have safe and healthy working conditions. Any worker can refuse to work if their workplace can cause serious imminent harm. A worker can complain to their employer about safety issues and even refuse to work. The Occupational Safety and Health Administration’s General Duty Clause, requires employers to guarantee their employees a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” If a worker believes that their workplace can cause serious imminent harm, they can file a complaint against their employer with OSHA. Workers are protected from retaliation, such as, being fired or demoted.

National Labor Relations Board (NLRB)

The National Labor Relations Board offers protection for workers who believe that their workplace is “abnormally dangerous”. Workers can complain to their employer about safety issues and even refuse to work. The National Labor Relations Act (NLRA) gives workers the right to “strike for health and safety reasons”. If a worker or group of workers believes that their workplace is abnormally dangerous, they can file a complaint against their employer with NLRB. Workers are protected from retaliation, such as, being fired or demoted.

Word of caution: Consult an experienced civil rights attorney before taking action.

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COVID-19: You should not have to risk your life to earn a living.

By Bryan A. Chapman, Esquire

If White House aides and Secret Service agents can become infected with COVID-19, then who is safe? We know that hospitals, nursing homes, jails, prisons, homeless shelters, and meat packing plants are hot spots for COVID-19 infections. But, is any workplace safe from COVID-19 infections?

In the midst of the 2020 COVID-19 pandemic, the country is abandoning stay at home orders and reopening the economy this summer. Millions of workers will be exposed to COVID-19 and, in the absence of a vaccine, thousands will die from COVID-19 infections.

For most workers, a COVID-19 infection will not be fatal. But, for a small group of workers, a COVID-19 infection will be fatal. Numbers show that for older workers with a comorbidity (hypertension, diabetes, heart disease, etc.) a COVID-19 infection can be fatal.

Americans with Disability Act (ADA)

The Americans with Disability Act (ADA) offers protection to workers with disabilities who are at heightened risk from COVID-19. The ADA allows workers with disabilities to request a reasonable accommodation from their employers. Employers are obligated to provide a reasonable accommodation provided doing so does not cause an undue hardship.

In the absence of a COVID-19 vaccine, a reasonable accommodation would involve reducing a worker’s exposure to COVID-19 until an effective COVID-19 vaccine can be administered. The ideal reasonable accommodation would be for the worker to work from home. However, working from home may not be possible.

Under the ADA, the worker and their employer have to engage in an interactive process to determine what kind of reasonable accommodation is available. Employers are expected to act in good faith, but this is not always the case.

An employer may fail to provide a worker with a reasonable accommodation. Retaliation is commonplace. And, it is not unusual for an employee who has been granted a reasonable accommodation to eventually be terminated for not performing the job for which their were hired. Reasonable accommodation claims can be contentious. These claims can end up in litigation.

However, for an older worker with a comorbidity, pursuing a reasonable accommodation can be a matter of life or death.

Word of caution: Consult an experienced civil rights attorney before seeking a reasonable accommodation.

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Advocating for workers against powerful employers since 1993

Bad Things Happen to Good People.

These are difficult times. You need a passionate lawyer to advise you and stand up for your rights.

What are your rights?

COVID-19 has caused massive layoffs. Nonetheless, anti-discrimination laws still exist and are enforceable. You can’t be discriminated against or harassed because of your race, sex, national origin, religion, age, or disability.

Workplace discrimination and harassment can cause stress, anxiety, depression, and post-traumatic stress disorder (PTSD). It can lead to chronic conditions, such as, high blood pressure and poor blood sugar control.

Doing nothing will harm your health. Taking action can bring relief. 

COVID-19

If you have a underlying health condition, such as, hypertension, diabetes, heart disease, etc., that puts you at greater risk from COVID-19, you have the right to request a reasonable accommodation that reduces your exposure to COVID-19. It’s a matter of life or death.

Call Now 202 508-1499.

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