Supreme Court Hears Oral Argument on “Cat’s Paw” Theory of Liability; Decision Anticipated Later This Term
For the first time the United States Supreme Court is poised to provide guidance on the “cat’s paw” theory of liability in employment discrimination cases. Under the “cat’s paw” theory, an employee alleging to be the victim of unlawful discrimination seeks to impose liability on the employer in situations where a non-biased decision-maker is influenced by another, usually subordinate, employee who is, in fact, motivated by discriminatory animus. In Staub v. Proctor, the Supreme Court recently heard oral argument on the proper application of the “cat’s paw” theory, which gets its name from the 17th century fable by French poet Jean de La Fontaine. In the fable a monkey convinces a cat to remove chestnuts from a fire. The cat complies, pulling out the chestnuts one at a time, burning her paw in the process, as the monkey feasts on the chestnuts.
In Staub, a hospital employee and an Army reservist, claimed that his employer’s decision to terminate him was influenced by the anti-military animus of his immediate supervisors, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). The trial court gave a limited cat’s paw jury instruction, explaining that “animosity of a co-worker toward the Plaintiff on the basis of Plaintiff’s military status may not be attributed to Defendant unless that co-worker exercised such singular influence over the decision maker that the co-worker was basically the real decision maker.” The jury sided with Staub, finding that the decision-maker had been improperly influenced by the plaintiff’s immediate supervisors who possessed anti-military animus. The Court of Appeals for the Seventh Circuit reversed, however, holding that the trial judge failed to make a threshold determination of whether there is evidence that a biased supervisor exerted “singular influence” on the ultimate decision-maker before allowing a jury to hear evidence regarding the alleged animus of subordinate employees. The Seventh Circuit concluded that the defendant hospital was not liable, reasoning that employers are not liable when the decision-maker may be counseled by those with discriminatory intent but where lawful grounds for termination are supported by the decision-maker’s own independent investigation.
At oral argument before the Supreme Court, plaintiff’s counsel asserted that USERRA should be governed by traditional agency principles, thereby enabling the anti-military bias of the plaintiff’s immediate supervisors to be imputed to the hospital. The plaintiff argued that the appropriate test in this case is whether plaintiff’s military service was a “motivating factor” of the plaintiff’s immediate supervisors’ exercise of authority granted to them by their employer in taking steps to affect plaintiff’s discharge. Counsel for the defendant hospital countered that the Seventh Circuit correctly articulated the “cat’s paw” theory of liability applicable in this particular case. In addition, counsel highlighted the fact that the hospital had conducted an independent investigation after receiving complaints by plaintiff’s immediate supervisors, and that the independent investigation was not tainted by anti-military animus. The Court, in particular Justice Alito, expressed concern regarding whether the recognition of the “cat’s paw” theory of liability in this case would extend the theory beyond USERRA claims to Title VII of the 1964 Civil Rights Act and the Age Discrimination in Employment Act. Cases in a number of circuits have addressed the “cat’s paw” theory in the context of these anti-discrimination laws but none of these cases ever reached the Supreme Court.
A decision is expected later in the Supreme Court term and should provide clarification of the circumstances under which the bias of a non-decision-maker will be attributed to the employer and what steps the employer needs to take to shield itself from liability. As set forth in an article previously published by the Employment & Labor Law Alert, employers should, as a matter of best practices, be mindful of the possibility that a recommended adverse employment action by a non-decision maker may be motivated by discriminatory animus.