“The Monkey and the Cat” is a fable (dating back to the 17th century or perhaps earlier) about a monkey who persuades a cat to pull chestnuts from the embers of a fire, only to take the reward for himself and leave the cat nursing a burnt paw. The fable is the source of the English idiom “cat’s paw” – essentially, one who does another’s dirty work. The story of the clever monkey and the unsuspecting cat has also worked its way into modern employment discrimination law. “Cat’s paw liability” describes a scenario when an employee or supervisor, motivated by discriminatory intent, influences an otherwise unbiased decision-maker to take an adverse employment action against another employee. In the end, the employer is still held responsible. Employers should heed the moral of the story and take steps to avoid the fate of the duped feline.
Courts have been citing the cat’s paw fable since at least 1990, but the law has changed somewhat since that time. Prior to 2011, some courts only held employers liable if the biased non-decision-maker exercised “singular influence” over the decision, and allowed employers to avoid liability as long as the decision-maker conducted an independent investigation. A 2011 Supreme Court Opinion, Staub v. Proctor Hospital, made the cat’s paw theory slightly more employee-friendly. Under the Staub rule, the employer will be held liable if three conditions are met:
(1) a non-decision-maker, who is the employee’s supervisor, is motivated by discriminatory (or retaliatory) intent;
(2) the biased non-decision-maker performs an act intended to cause the employee to suffer an adverse employment action (such as a demotion or termination); and
(3) the biased non-decision-maker’s act is a proximate (foreseeable) cause of the adverse action.
After Staub, the employer can no longer automatically defend a cat’s paw case by arguing that the non-biased decision-maker investigated other materials (such as the employee’s personnel file) before making the ultimate decision. As long as the biased supervisor’s input is a factor (but not necessarily the sole factor) in the decision, the employer can still end up getting burned.
Does Cat’s Paw Liability Apply to All Employment Claims?
Cat’s paw liability generally applies to employment claims that require proof that discrimination is a “motivating factor” in an adverse employment action, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and other state law discrimination statutes. However, several courts have held that the cat’s paw theory does not apply to the Age Discrimination in Employment Act, because ADEA claims are subject to a stricter “but for” legal standard.
Does Cat’s Paw Liability Apply to Claims Involving Non-Supervisors?
The Supreme Court’s decision in Staub did not touch on the issue of biased non-supervisors. The Eastern District of Pennsylvania recently addressed this issue, holding that a cat’s paw claim could be based on the actions of a biased non-supervisor, but only if:
(1) the employer was negligent or reckless in allowing the biased co-worker to influence the decision (for example, by relying solely on the biased co-worker’s input, without investigating further); or
(2) the employer aided the non-supervisor co-worker in accomplishing the “cat’s paw” scheme (for example, by delegating certain responsibilities to the co-worker).
How Can Employers Minimize the Risk of a Cat’s Paw Claim?
An aggrieved employee may know nothing about the motives of higher level decision-makers but may have an issue with an immediate supervisor or co-worker that he/she will seek to resurrect during litigation via the cat’s paw theory. Employers can minimize risk by taking the following steps:
- Make sure all employees and supervisors are informed of and properly trained on anti-harassment, anti-discrimination, and anti-retaliation policies;
- Adopt and publicize simple and accessible policies for reporting discrimination claims internally, and keep track of prior complaints that are filed;
- Address all allegations of discrimination promptly, and take appropriate action. Even isolated discriminatory comments that might not constitute a “hostile work environment” under the law could be problematic if the employee or supervisor making the comments later becomes involved in an employment decision;
- Ensure that all negative employment decisions are supported by well-documented legitimate business reasons, and that a variety of individuals have been consulted before deciding to take more serious disciplinary action such as suspension or termination (particularly when the employee denies wrongdoing);
- Give employees an opportunity to raise any issues with employment decisions internally (via grievance or “open door” policies); and
- Make sure all employees who commit similar infractions are subject to similar corrective action (unless there are distinguishing factors such as different job titles, different duties or different disciplinary histories).
While the fable may be obscure, the possibility of a cat’s paw claim is always lurking in the workplace. By taking the above measures, employers can minimize the risk of a Cat’s Paw claim.