One protection against a retaliation claim is to shield an "accused" supervisor from subsequent decisions about the employee who has complained. Doing so helps to avoid what courts call the "cat's paw" theory of liability.
The term comes from a fable about a monkey that convinces a cat to use its paw to dig chestnuts out of a fire. The monkey avoided injury by setting up the cat to do its dirty work and accomplish its desired outcome. In litigation, courts ask whether the supervisor with the retaliatory motive (the "monkey") has similarly acted behind the scenes to manipulate another manager (the "cat") to discipline or even fire the employee who accused him or her of wrongdoing.
What steps can a careful employer take when it is not feasible to remove the accused supervisor from ongoing management of the accusing employee?
- Establish a second source of input for information needed by decision-makers. That is, even if the accused supervisor must stay involved, provide a "second opinion" as back-up.
- Be careful to document the fact that decisions are based on the views or opinions of multiple managers, not only those of the accused supervisor.
- Take opportunities to share certain supervisory duties. For example, if the employee engages in misconduct, bring in an outside manager to conduct the investigation.
- As always, try to make discharge decisions based on objective and verifiable factors, not on the subjective judgments of the accused supervisor
- Be sure to act in accordance with written policies that are equally applied to all employees. Now is not the time to vary your actions from the language of your policy.
TIP: There has been a dramatic increase in the number of retaliation claims. Even when an underlying discrimination claim lacks merit, later disciplinary action or discharge can give rise to a retaliation claim. Therefore, management of "complainants" requires careful thought, especially when an adverse personnel decision is on the horizon.