Ever wonder what the difference is between disparate treatment and disparate impact, or what a cat's paw has to do with workplace litigation? Here's a quick primer of confusing legalese terms.
Question: Our company is currently involved in litigation and, as the HR professional assisting with the defense, I am hearing a lot of unfamiliar legal terms used, such as "disparate treatment", "disparate impact", "cat's paw" and "mixed motive". Would you mind explaining what these legal terms mean in non-legalese?
Answer: Legal terms explained:
Disparate Treatment: Also known as differential treatment, disparate treatment claims are ones in which the plaintiff alleges he or she is the victim of intentional discrimination on the part of the employer. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 153 (2000). To be considered a victim of intentional discrimination, the complaining employee must show he or she is treated less favorably because of a statutorily protected characteristic such as age, sex, race or other prohibited discriminatory factor, and that the differential treatment is the result of a discriminatory motive or intent. See Ricci v. DeStefano, 557 U.S. 557, 577-78 (2009).
Disparate Impact: Disparate impact claims involve employment practices that are facially neutral in their treatment of different groups but in fact fall more harshly on one group than another. Smith v. City of Jackson, 544 U.S. 228, 239 (2005); Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). Unlike disparate treatment claims, disparate impact claims do not involve intentional discrimination, i.e., the plaintiff is not required to prove that he or she is the victim of discriminatory motive or discriminatory intent. See Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003); Puffer v. Allstate Ins. Co., 675 F.3d 709, 716 (7th Cir. 2012).
Cat's Paw: Also called the "subordinate-bias" theory, the cat's-paw theory holds that an employer is liable for discrimination when an unbiased decision-maker makes an adverse employment decision against an employee because he or she was influenced to do so by a biased managerial employee. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1193-94 (2011). In this circumstance, the biased managerial employee using the unbiased decision-maker as a conduit, or "cat's paw," to give effect to the managerial employee's discriminatory intent or prejudice. Dwyer v. Ethan Allan Retail, Inc., 325 F. App'x 755, 757 (11th Cir. 2011). To be successful under the cat's paw theory of liability, the plaintiff must provide evidence of a causal relationship between the ultimate decision-maker's decision and the discriminatory information flow upon which the decision-maker relies. See Staub, 131 S.Ct. at 1194; Chattman v. Toho Tenax Am. Inc., -- F.3d --, No. 10-5306, 2012 WL 2866296, at *8 (6th Cir. July 13, 2012).
Mixed Motive: Also known as "dual motive," mixed motive describes a situation in which an employer has both a prohibited discriminatory motive and a legitimate nondiscriminatory motive for an employment decision adverse to the plaintiff. Schroder v. Pleasant Valley Sch. Dist., 458 F. App'x 128, 131 (3d Cir. 2012). Under this theory, a plaintiff can recover if he or she can show that an intent to discriminate was "a" not "the" motivating factor for the employment decision or practice. In other words, discrimination exists if the plaintiff can show that a protected category such as race, age or sex was "a" motivating factor for the complained-of employment decision or practice. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003); Pennington v. City of Huntsville, 261 F.3d 1262, 1269-71 (11th Cir. 2001).
Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.