The adage “Trust but verify” just took on added significance for HR.
Do you trust your line managers to be unbiased when they propose to discipline an employee? A decision just issued by the U.S. Supreme Court means you had better verify that trust.
Here’s a thumbnail of the case: A hospital employee in Illinois got fired. He had a mixed record on the job, and the hospital said the last straw was an incident where he left his work area without permission. But the employee was also an Army reservist, and he sued the hospital for violating USERRA, the law protecting military service members from employment discrimination, claiming his direct supervisor had an anti-military bias.
The court that heard the employee’s case decided that the employer acted illegally and awarded him $58,000 in damages. The problem: The employee’s direct supervisor and his department head had made some cutting comments about his military service in the past.
The trial court didn’t accuse the HR manager who actually made the termination decision of discriminating against a service member. But the court said that in this case, HR didn’t do a full investigation of the employee’s alleged misdeeds, and so relied on biased managers so much that the termination came out discriminatory.
Lawyers call this the “cat’s paw” syndrome. The reference is from the fable in which a clever monkey gets a not-so-clever cat to pull its roasting chestnuts out of the fire, burning the cat’s paws but giving the monkey what it wants.
Independent or not?
Eventually, the case made its way to the Supreme Court, which agreed with the employee that the supervisors’ hostility was the real reason for the termination, not his alleged misconduct.
The hospital protested that HR had conducted its own investigation, and found good reason to fire the employee. But the Supreme Court disagreed.
The court said that if a so-called independent investigation by HR simply “relies on facts provided by the biased supervisor,” then the employer has “effectively delegated the factfinding portion of the investigation to the biased supervisor.” That’s what happened in this case, the court said.
No good HR person wants to be a cat’s paw for a supervisor with an unconscious bias toward some group of employees – or, worse, a hidden agenda against racial minorities, certain nationalities, older workers and so forth.
So what does this important court ruling mean you should do?
Well, depending on how things work in your organization, it may or may not be practical for HR to have input into every single reprimand or writeup a line manager gives an employee.
But in cases of severe discipline – like terminations or suspensions without pay – HR should always check before going ahead with a supervisor’s recommendation.
And by check, we don’t mean just asking the supervisor twice if he’s sure. Review the documentation yourself, and speak at least to the employee and any witnesses to the alleged misconduct. If you have any doubts, it’s also a good idea to ask the supervisor’s peers if they’ve ever heard her express questionable opinions about the employee or people like him.
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