The case  of Godwin v. WellStar Health System, Inc. involved a termination decision by a non-discriminatory officer who relied on the information provided by a discriminatory supervisor. (11th Cir. June 17, 2015). Known as the “cat’s paw” theory of discrimination, the principle is that discrimination can occur where a decision-maker relies on the biased input from another manager.

Mary Godwin, age 63, alleged that she was terminated due to her age. As evidence, she introduced comments that her 35-year-old supervisor who recommended her termination asked how old she was, asked why she was still working at her age, told her that she should have planned for the expense of retirement, and told her that she was going to put Godwin “out to pasture.”

The supervisor recommended to her vice-president that Godwin be terminated due to performance  issues. Relying on the supervisor’s comments, the vice-president terminated Godwin. In asserting that the supervisor’s age based comments were a basis of termination, Godwin successfully argued that under the cat’s paw theory, the  terminating vice-president “rubber stamped” the supervisor’s decision without conducting an independent investigation. The court stated that the supervisor with the ageist comments had a “determinative influence” over the vice-president’s decision to fire Godwin. Where a biased supervisor’s recommendations have a determinative effect on the ultimate decisionmaker, liability may occur where that decision maker does not conduct an independent investigation of the basis for termination, which includes a discussion with employee to be terminated. Therefore, the court stated that it was up to the jury to decide whether Godwin was terminated based upon her age.

Many organizations as a matter of risk management require a termination decision to be reviewed by a member of the leadership team not directly involved in the process. This can be an effective approach to reduce the risk of an employment dispute, but for it to really be effective, that decisionmaker needs to dig into the underlying circumstances for the termination and satisfy herself or himself that the reasons are appropriate. Otherwise, it may come across as a “rubberstamp,” and the bias of the individual or individuals recommending termination will be attributed to the ultimate decision maker.