Kilies and Watkins: The Cat’s Paw theory: Navigating employer liability

When employers make adverse employment decisions, they must be careful that the decision isn’t based solely on the word of a single employee. Under the Cat’s Paw Theory, employers may be liable if it is eventually uncovered that there was a discriminatory basis underlying the adverse employment decision.

What is the theory

The term “cat’s paw” is derived from an Aesop fable put into verse by La Fontaine in 1679, where a cunning monkey persuaded a cat to retrieve roasting chestnuts from a fire. Cat’s paw means a person has been unwittingly duped by another. In 1990, Judge Posner injected this term into United States employment discrimination law. See Shager v. Upjohn Co., 913 F.2d 398, 405(7th Cir. 1990). Today cat’s paw refers to a situation where an employer, with no discriminatory motive, is manipulated into taking adverse employment action by a subordinate who does have a discriminatory motive.

In an illustrative case, Staub v. Proctor Hospital, the U.S. Supreme court accepted the “cat’s paw” theory of establishing liability in an employment case. Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011). The Court determined that an employer who had no discriminatory motive may be liable for a supervisor’s discriminatory animus when the employer gives automatic approval to a supervisor’s recommended adverse employment action. Id. The Court held “if a supervisor performs an act motivated by [] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable …” Id.

The Court focused on “supervisor” conduct and concluded the supervisor in the case acted as an agent for the employer, and the neutral decision-maker was merely a channel of the subordinate supervisor’s prejudice. Id. According to the Court, in such circumstances, “[t]he employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision.” Id. at 1193.

How can an employer shield itself?

There are proactive measures that an employer can take to minimize its risk of liability under a cat’s paw theory. Metzger v. Illinois State Police, 519 F.3d 677(7th Cir. 2008), offers some guidance. In that case, plaintiff was denied promotion and sued the Illinois State Police alleging that it violated Title VII by retaliating against her for having previously filed a sex discrimination suit against it. After being denied promotion, plaintiff requested an audit by the Illinois Department of Central Management Services (“CMS”) to determine whether her position classification should be upgraded. Id. at 679. During the audit, plaintiff’s supervisor communicated to CMS stating that plaintiff’s self-description of her job duties was “grandiose.” Id. CMS concluded that plaintiff’s position should not be upgraded. Id. at 680.

The District Court granted summary judgment in favor of the State Police, and plaintiff appealed. The Court of Appeals held that State Police could not be liable under Title VII for any alleged retaliatory animus that a non-decision maker (supervisor) harbored against plaintiff. Id. at 683. The court placed significant emphasis on CMS’s consultation with four different sources in arriving at its final decision. Id. at 680. It determined that despite adverse statements made by plaintiff’s supervisor during the audit, there was insufficient evidence to suggest that CMS’ investigation was anything other than “independent” and was not the result of any alleged retaliatory animus held by plaintiff’s supervisor towards her. Id.

Key takeaways for employers

To avoid liability through a cat’s paw theory, it is important that employers are proactive in their employment practices. Some helpful proactive measures are:

• Have a written set of objective criteria by which candidates for promotion are to be evaluated.

• Make sure candidates and all persons providing input into the promotion decision have and are aware of these written criteria.

• Require any information from supervisors and/or coworkers relevant to the promotion decision to be in writing, specifically address the written criteria, and provide concrete examples of how the employee does/does not meet the established promotion criteria.

• Before making an adverse decision based upon employee information provided, take all feasible steps necessary to ensure that the information is accurate. For example, if Bob’s supervisor says, “I wouldn’t promote Bob; he’s always late,” look at Bob’s timecards and see if Bob’s tardiness really is an issue.

• Be particularly suspicious of very general criticisms that lack specificity, as these are more likely to be motivated by prejudice and to lead to cat’s paw liability if relied upon in making an adverse decision. For example, If Bob’s supervisor says, “Bob is lazy,” ask for concrete examples of how Bob’s performance falls behind others’ and see if there is any objective evidence.

However, in the event that an employer must respond to a complaint filed, it is essential that an employer investigate all complaints of adverse actions in a neutral, independent, and thorough manner to sever any link of causation. Employers should avoid depending solely on the accounts of supervisors or colleagues. Before an employer takes any disciplinary measures against an employee, the employer must undertake a fair, unbiased, and sincere investigation into the accusations to avoid acting upon erroneous or deceptive information. When faced with a complaint of adverse action an employer should:

• Follow all company procedures and/or grievance policies.

• Include the input of neutral/non-biased parties.

• Take into consideration contrary evidence.

• Conduct interviews of related and non-related parties.

• Thoroughly investigate all claims equally.

The cat’s paw theory may cause confusion among employers and could even instill fear. However, if an employer is proactive in its employment practices, maintains neutrality, and conducts comprehensive investigations into all allegations of adverse action, these measures can help mitigate potential liability.•

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Janelle P. Kilies is a partner and Michael R. Watkins is an associate at Lewis Wagner. Opinions expressed are those of the authors