Hunton Employment & Labor Perspectives

A recent case from Ohio highlights the evolution of both “cat’s paw” liability and “gender stereotyping” claims in employment litigation.  In Koren v. The Ohio Bell Telephone Company, No. 1:11-cv-2674 (N.D.Ohio Aug. 14, 2012), plaintiff Jason Koren, then known as Jason Cabot, first worked for Ohio Bell from 2000 to 2006.  He told his co-workers he was gay and had AIDS.   He left his employment on good terms and subsequently married his partner in Massachusetts, taking his husband’s last name of Koren.  Koren was rehired by Ohio Bell as a sales consultant in 2009.   Koren alleged one of his managers refused to recognize his marriage or name change and persisted in calling him Cabot.  Koren also described a number of allegedly discriminatory job actions.  In 2009, Koren’s father died, and he missed nine days of work.  Ohio Bell terminated Koren for excessive absences.  He sued for gender and disability discrimination under Federal and Ohio law.

Ohio Bell moved to dismiss Koren’s claims.  On the disability discrimination claim, Ohio Bell said the decisionmaker on Koren’s discharge had no knowledge of his disability (AIDS).  Koren countered with a “cat’s paw” theory of liability, claiming his managers knew of his condition and the decisionmaker relied on their input.  (The “cat’s paw” theory is named after Aesop’s fable “The Monkey and the Cat,” in which a clever monkey convinces a cat to reach into a hot fire and withdraw roasting chestnuts.)  The managers denied knowledge of Koren’s AIDS.  However, the record reflected that his co-workers knew about it, and that his manager had required Koren to provide a medical note to justify extra bathroom breaks necessitated by his AIDS medication.  The court thus ruled that the disability discrimination claim turned on a question of credibility, which could not be decided on summary judgment.

For his gender discrimination claim, Koren claimed he was discharged for failing to conform to gender stereotypes.  The Sixth Circuit recognizes claims of sex discrimination where men are penalized for acting femininely, as such treatment is “because of sex.”  Smith v. City of Salem, Ohio, 378 F.3d 566, 674 (6th Cir. 2004).  Ohio Bell argued that Koren was impermissibly attempting to “bootstrap” sexual orientation protection into Title VII and the Ohio Civil Rights Act, neither of which prohibit sexual orientation discrimination.  The court disagreed.  Koren did not claim he was discriminated against for being gay.  Instead, he claimed he was penalized for taking his husband’s name, when female employees were not punished for the same action.  Koren also argued his discharge for attendance was pretext for discrimination, as the company had flexibly applied its attendance policy to other employees in special situations or on bereavement leave.  His shop steward testified she had “never seen this kind of a reaction to someone with a dying parent.”  Thus, the court ruled that Koren had sufficient evidence to proceed with his claim.

This case is notable for at least two reasons.  First, it reflects the increasing reliance of plaintiffs on a “cat’s paw” theory of liability, in which they challenge employers’ efforts to separate any discriminatory intent from actual decisionmakers.  Under a “cat’s paw” theory, a supervisor or manager who has mere input into a personnel decision may taint the decision if discriminatory animus is shown.

The case also demonstrates the nuanced difference between a sexual orientation discrimination claim, which is not protected by Title VII or many state laws, and a gender stereotyping claim, an increasingly recognized form of sex discrimination.  The latter claim removes actual sexual orientation from the analysis, and relies only on establishing that the plaintiff was discriminated against because he or she did not conform to traditional gender stereotypes.