156 Discrimination by third parties and "Cat's Paw"

The Complainant alleged that the Respondent decided not to employ him because of his arrest and/or conviction record. The Respondent’s defense was that it was unable to employ the Complainant for the position he sought because the agency that funded the position did not approve his hiring. The evidence presented supported the finding that the Respondent lacked the authority to hire the Complainant without the approval of the funding agency. Documentary evidence appeared to show that the funding agency’s refusal to approve the Complainant’s application was related to his arrest record. Although an employer cannot avoid liability for its hiring decisions by pointing to the discriminatory animus of some third party, in this case the Respondent ceded control of the hiring process to a third party, independent of its consideration of the Complainant’s application for employment. In this unusual set of facts the funding agency’s rejection of the Complainant’s application is not a discriminatory act of the Respondent. Sloan v. Human Dev. Ctr. (LIRC, 08/29/14).

The Complainant, making a “cat’s paw” argument, contended that although the individual making the hiring decision had no perception that the Complainant was disabled, the recruiter who collected his application materials perceived him to be disabled, and withheld certain application materials from the decision-maker because of that perception. The Complainant failed, however, to prove that the recruiter’s failure to send the materials to the decision-maker was motivated by discriminatory animus and failed to prove that the missing materials had any effect on the hiring decision. Ray v. Gordon Trucking (LIRC, 06/07/13).

If an employer acted as a conduit of a supervisor’s prejudice (i.e., his “cat’s paw”) the Respondent will be liable. In this case, the Complainant, a female, applied for a promotion within the police department. A detective captain on the selection committee recommended a male for this position, rather than the Complainant. Based upon the evidence at the hearing, it was reasonable to infer that the detective captain, as an agent for the Respondent, lied to cover up his discriminatory purpose. He fabricated deficiencies in the Complainant’s performance to justify his choice of another candidate. He did this because he did not want a woman in the position of detective sergeant. The detective captain presented his choice of the male candidate to the selection committee (which was an unbiased decision-maker). The committee rubber-stamped his choice, as was their practice. This choice was then presented to the sheriff, who also accepted the choice of the captain of the division in which the promotion was occurring, as was his practice. In this way, the decision by the biased detective captain decisively influenced the selection committee and the sheriff. His discriminatory motive is attributed to the Respondent. Thobaben v. Waupaca County Sheriff’s Dep’t (LIRC, 12/23/11).

The commission has recognized the "cat's paw" analysis adopted by the 7th Circuit in Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990). The "cat's paw" analysis allows a finder of fact to impute a discriminatory motive to an unbiased decision maker who is "decisively influenced" by an employee who is prejudiced against the Complainant based on a discriminatory motive. The Complainant must establish that the decision maker relied "exclusively" or "primarily" on information from the prejudiced employee. Haecker Jr. v. Charter Steel (LIRC, 01/28/03).

Where an employer asserts that it made an employment decision on the basis of adverse media publicity about a particular characteristic of an employee it is clearly relying on a supposition that it could be harmed by the responses of third parties who would be affected by that publicity (such as customers and clients). However, an employer may not avoid liability for a discriminatory decision by asserting that it was simply responding to the preferences of coworkers, customers, clients, or prospective partners in or purchasers of the business. An employer may not discriminate simply because it is urged or pressured by some third party to do so. That principle also requires the conclusion that an employer may not discriminate simply because adverse media publicity about an employee causes the employer to fear that there will be an adverse response by third parties if it does not do so. Murray v. Waukesha Mem’l Hosp. (LIRC, 05/11/01).

The Complainant failed to establish that the Respondent violated the Act where the Respondent established that it believed in good faith that complaints made about the Complainant by other employees were true and that this is what motivated its decision to terminate the Complainant’s employment. Potts v. Magna Publications (LIRC, 02/27/01).

An employer violates the law when it knowingly makes an employment decision because some third party who is in a position to coerce the employer insists on that decision out of a discriminatory motive. The source of the third-party pressure is not relevant. Whether it is the unwillingness of biased customers to patronize a business, or the unwillingness of suppliers to sell to the business, or the unwillingness of biased investors or lenders to provide financial backing for the business, the extent of the pressures brought to bear on the business may be equally serious, but the law remains the same: the employer may not serve as a conduit for the discriminatory intent of the third party. Swanson v. State St. Stylists (LIRC, 11/26/97).

Where an employer acquiesced to pressure from another employee to fire the Complainant, it violated the Act. The motivation of the other employee was improper. In effect, by doing what the third party wanted, the employer itself acted because of an improper motive. Stanton v. Abbyland Processing (LIRC, 05/30/85), aff’d sub nom. Abbyland Processing v. LIRC (Taylor Co. Cir. Ct., 02/14/86).

It was a violation of the Act to transfer a white security guard from a position in Milwaukee’s inner city because of a customer request based on the employee’s race. Waldo v. Milwaukee Metro Security (DILHR, 04/08/76).