The Cat's Paw

“Once upon a time, a Cat and a Monkey lived as pets in the same house. They were great friends and were constantly in all sorts of mischief together. What they seemed to think of more than anything else was how to get something to eat, and it did not matter much to them how they got it.

One day they were sitting by the fire, watching some chestnuts roasting on the hearth. How to get them was the question. "I would gladly get them," said the cunning Monkey, "but you are much more skillful at such things than I am. Pull them out and I'll divide them between us."

The cat stretched out her paw very carefully, pushed aside some of the cinders, and drew back her paw very quickly. Then she tried it again, this time pulling a chestnut half out of the fire. A third time and she drew out the chestnut. This performance she went through several times, each time singeing her paw severely. As fast as she pulled the chestnuts out of the fire, the Monkey ate them up.

Now the master came in, and away scampered the rascals, Mistress Cat with a burnt paw and no chestnuts. From that time on, they say, she contented herself with mice and rats and had little to do with Sir Monkey.” Aesop, “The Monkey and the Cat"

What does the above fable have to do with Human Resources?

The Cat’s Paw Doctrine or Principle (also known as Subordinate Bias) is based on the above fable. The monkey convinces the cat to do their dirty work if you will, and the cat does it without understanding the related consequences, no questions asked. The monkey manipulated the cat to get what they wanted and all the cat had to show for it was being burned!

This is what happened in the famous court case, Staub v. Proctor Hospital. The facts of the case from the Supreme Court opinion include:

While employed as an angiography technician at a hospital, the employee (Staub was a member of the United States Army Reserve. Both his immediate supervisor and supervisor’s supervisor were hostile to his military obligations.

Staub was given a disciplinary warning which included a directive requiring him to report to either of the supervisors when his cases were completed. After receiving a report from the supervisor that Staub had violated the Corrective Action, the hospital’s VPHR reviewed Staub’s personnel file and decided to fire him.

Staub filed a grievance that the allegations were fabricated and the real reason for hostility was due to his military obligations. Nonetheless, the VPHR stood by the decision. Staub sued the hospital under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which forbids an employer to deny “employment, reemployment, retention in employment, promotion, or any benefit of employment” based on a person’s “membership” in or “obligation to perform service in a uniformed service,” and provides that liability is established “if the person’s membership . . . is a motivating factor in the employer’s action,” §4311(c). He contended not that the VPHR was motivated by hostility to his military obligations, but that the supervisors were, and that their actions influenced the VPHR’s decision.

The EEOC recaps in part "Animus and responsibility for the adverse action can both be attributed to the earlier agent if the adverse action is the intended consequence of that agent's discriminatory conduct. So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable under USERRA."

TLDR; (In my own words): basically, even if I as the HR representative don’t have all the information, knowledge of motive, or personal bias behind my final recommended employment action, if I go along with it, it can still be considered retaliatory. In this case, it appears the HR investigation was insufficient. That’s my personal take away. It helps me understand that I have a responsibility to obtain the full picture before rubberstamping an employment action or decision.

How do I do that and still have a “Get There with You” philosophy? Primarily by asking a lot of questions!

When a business leader discusses a situation with me, my default should be remaining inquisitive and exploring questions before taking everything at face value. This isn’t necessarily because I don’t trust the business leader; it’s because I want to make sure I have all the relevant facts before we can work out a recommendation. In this process, the recommendation may be exactly as the business leader suggests, delayed, or somewhere in between.

Imagine a business leader comes to you and says “I want to fire Ambrose right now! He just abruptly left without saying why!”

It is 100% true that leaving your shift without a reason can be considered job abandonment. But is that the only plausible reason? Things I’d want to know/evaluate include:

• Length of Service of the employee (EE)

• Has this ever happened before with the EE?

• Did anything out of the ordinary happen before EE walked out? An argument? A call? An email?

• Are there other documented behavioral or performance concerns?

• Is the supervisor aware of any personal/family dynamics or circumstances that may have caused this?

• What is our policy and how have we handled this type of thing before, if applicable?

If the answers are more like EE being there three weeks, has had multiple blow ups on the floor with others including supervisor, has been late multiple times, then that is a different response than EE has been with the company four years with no issues, recently found out his spouse has cancer, and was observed on a call outside a few minutes prior to the event.

While technically still a policy violation, the latter adds context that is necessary for evaluating next steps. Next steps may vary depending on size of company (whether someone is FMLA eligible or not) or internal policies. Ignoring these details may have serious repercussions.

In my role, I want to support the business leader addressing the situation. Just because the person doesn’t get fired doesn’t mean the situation is not addressed. If the EE had an unexpected family emergency, we can show empathy and support while still addressing the walking out part creating a plan for how to handle in the future. We can be flexible while still requiring the EE to follow established protocols.

Similar thought processes apply to investigations but that’s worth a whole other entry (or 12)!

As HR leaders, we are business allies and representatives of the company. We should keenly evaluate situations and work with business leaders towards outcomes that burn no one, or at the very least, thoroughly make that our goal.

P.S. Here's a cute picture of my cat!

#HRDeptOf1 #GettingThereWithYou #GetThereWithYou #HRDepartmentOfOne #CatsPaw #retaliation #SubordinateBias