Jonathan I. Nirenberg Labor and Employment Law Blog on Lawyers.com

The New Jersey Appellate Division recently ruled that it is possible for an employee to prove he was fired for a discriminatory reason even if the person who made the ultimate decision to fire him did not have any discriminatory animus. Specifically, that can happen if the employee’s supervisor did something to bias the decisionmaker, or if the decisionmaker’s involvement in the process was a mere formality.

The case, Kwiatkowski v. Merrill Lynch, involved Merrill Lynch’s decision to fire one of its employees, Darren Kwiatkowski. Mr. Kwiatkowski is gay. Merrill lynch fired him after he deliberately disobeyed an instruction from his supervisor, Theresa Wonder.

Immediately after Mr. Kwiatkowski’s insubordination, Ms. Wonder reported him to her supervisor, Sandra Givas, and recommended that the company should fire him. There was evidence that Ms. Wonder knew Mr. Kwiatkowski was gay and was biased against him on that basis. However, there was no evidence that Ms. Givas even knew that he was gay.

Several weeks later, Merrill Lynch fired Mr. Kwiatkowski for insubordination. Although Mr. Kwiatkowski admitted that he had been insubordinate, he contended that the punishment was too severe, and that Merrill Lynch really fired him because of his sexual orientation.

After he was fired, Mr. Kwiatkowski experienced panic attacks, sleeplessness, nightmares, depression, upset stomach, loss of appetite, shortness of breath, chest pain, weakness, and emotional instability. His psychiatrist diagnosed him with post-traumatic stress disorder.

Prior to the appeal, the trial court had dismissed the case, finding that since the decisionmaker, Ms. Givas, did not even know that Mr. Kwiatkowski was gay, Merrill Lynch could not have possibly fired him based on his sexual orientation.

But the New Jersey Appellate Division disagreed, finding Ms. Givas’ decision was tainted by Ms. Wonder’s recommendation to fire him, which a jury reasonably could have concluded was motivated by his sexual orientation. The Court relied on the fact that, since Ms. Givas had no actual knowledge of Mr. Kwiatkowski’s job performance or the misconduct that caused Ms. Wonder to recommend firing him, she must have relied heavily on information from Ms. Wonder, including her recommendation to fire him. Accordingly, even though Ms. Givas made the ultimate decision to fire Mr. Kwiatkowski, a jury could reasonably conclude that Ms. Wonder caused Merrill Lynch to fire him for a discriminatory reason.

The court noted that there are different names for this theory which other courts have used in different contexts, including “subordinate bias,” which occurs when a decisionmaker relies on biased discriminatory information or opinions from a subordinate, the “rubber stamp,” which occurs when the decisionmaker merely approves a subordinate’s discriminatory decision, and the “cat’s-paw,” which occurs when a biased subordinate uses the decisionmaker as a pawn in a scheme to discriminate against the employee.

These theories of liability recognize that termination decisions often can be complex, and frequently someone other than the final decisionmaker can influence employment decisions. At the same time, they still require the employee to prove that discrimination made a difference in the termination decision.

It is important to note that the Kwiatkowski case is unpublished, meaning the Appellate Division’s decision is not legally binding on other New Jersey courts. However, courts are still likely to consider it when they decide similar cases under the New Jersey Law Against Discrimination.

The lawyers of the employment law and civil rights law firm of Resnick Nirenberg & Cash, P.C., are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.