Lexicon, Cat’s paw

By Tenechia Lockhart

Typically, the plaintiff in an employment discrimination suit alleges that a supervisor or other decision maker had discriminatory animus against her, which ultimately led to an adverse employment action. However, plaintiffs in employment discrimination suits are not limited to producing evidence of the decision maker’s animus. The cat’s paw theory allows the plaintiff to prevail in an employment discrimination suit by showing that a non-decision maker’s discriminatory animus led to adverse employment action.

The cat’s paw theory is a form of subordinate bias liability. Essentially, the cat’s paw theory imputes the discriminatory bias of a subordinate who lacks the formal authority to enforce an adverse employment action, onto a decision-maker who does have formal authority. The doctrine is based in agency principles.

The cat’s paw theory is derived from the fable The Monkey and the Cat by Jean La Fontaine. In the fable, a monkey convinces an impressionable cat to pull chestnuts from a hot fire. Each time the cat pulls a chestnut from the fire, burning his paw, he finds that the monkey has eaten the chestnut. In relation to the cat’s paw theory, the cat represents the decision maker, and the monkey represents the non-decision maker.

The Seventh Circuit’s Judge Posner first introduced the cat’s paw theory into employment law in Shager v. Upjohn Co., 560 F.3d 647 (7th Cir. 2009). Until the Supreme Court decided Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), the circuits were split on the proper standard to find liability. Even though the Supreme Court decision in Staub interpreted USERRA, courts have applied its holding to Title VII, the ADEA, and the ADA.

In Staub, the plaintiff alleged that he was terminated because his immediate supervisor, among others, harbored discriminatory animus toward the plaintiff’s military obligations, and fabricated disciplinary infractions to encourage his termination. 131 S.Ct. 1186, 1188. Justice Scalia’s opinion framed the issue as “aris[ing] when [the] official [who made the decision to terminate the employee] has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else.” Id. at 1191. Justice Scalia reasoned that agency principles created liability on the part of the employer when its employees harbored discriminatory animus, which ultimately lead to an adverse action. Id. But the cat’s paw theory is not as simple and clear-cut. Relying heavily on tort principles, Justice Scalia held that “if a supervisor performs an act motivated by [impermissible] animus that is intended by the supervisor to cause an adverse employment action, and if that act is proximate cause of the ultimate employment action, then the employee is liable.” Id. at 1194. The Court also held that an employer cannot sever its liability under the cat’s paw theory by merely conducting an independent investigation. Id. at 1193.

Questions remain about how this cat’s paw theory will develop in practice.

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