Law Students

The term "Cat's Paw" liability was coined by Judge Posner of the Seventh Circuit in Sharger v. Upjohn Co. in 1990. 913 F.2d 398, 405 (7th Cir. 1990). The reference is to Jean de La Fontaine's famous fable of the monkey and the cat. In the fable, a crafty monkey wants to eat a batch of hot chestnuts that are sitting in the fire. Unwilling to burn his own hand, he convinces the cat to reach his paw in and pull the chestnuts out for him. The cat ignorantly does his bidding, and the money enjoys the chestnuts with a laugh while the cat suffers the severe burns to his paw.

In the world of employment law, "Cat's Paw" is a representation of "Subordinate Bias Liability" and the circuits vary widely on just how to define the parameters of the doctrine.

Your typical subordinate bias case involves a manager or supervisor who has a discriminatory animus towards one of his subordinates (who is protected by Title VII, ADEA, ADA, etc.), but the supervisor lacks the ability to hire, fire, promote, demote, or otherwise take action against the employee. What the supervisor may do is manipulate the personnel file of the employee, make false negative reports, or recommend that the human resources department (or another group with proper decision making authority) review the file and take action. A lot of larger corporations have a problem when the decision makers are isolated from the rest of the employees, because the HR person who ultimately fires the employee might not even be aware that the employee was a member of a protected class.

Thus, the actual decision to terminate the protected employee was innoncent, in the sense that the decisonmaker himself did not harbor any illegal motive. The problem is that courts accept this practice as proper under civil rights and employment laws, employers can shelter themselves from liability simply by consolidating decision making authority and isolating those decision makers from the rest of the employees. Such a paradox is clearly contrary to the goals of Title VII, and thus - in varying forms - courts have adopted standards of assigning liability to the employer in these situations.

One of the primary means for an employer to escape liability is to demonstrate that the decisionmaker undertook an investigation and made an independent decision about whether or not to terminate the employee. One debate is whether the courts should be concerned with the "adequacy" of the investigation, as it is generally not the role of the judiciary to sit as super-personnel departments, second-guessing the personnel decisions of an employer.

If the employer merely utilized the reports provided by the bias subordinate, they become the "cat's paw" and the crafty supervisor - though lacking true authority - is able to exercise official (and discriminatory) power over the employee. The term "rubber stamp" is often used when the biased subordinate makes an official recommendation which is blindly approved by the decision makers. In such an instance, the company - through its actions - rubber stamps the discrimination and is thus liable for it.

There are essentially three standards that have been adopted, which I have coined (1) lenient; (2) intermediate; and (3) strict. The lenient standard was first proffered by the Seventh Circuit in the years following the Sharger decision.

Generally, under the lenient standard (the most employee friendly), liability may be imputed to an employer when ?an employee with discriminatory animus provided factual information that may have affected the adverse employment action.? This standard sets a very low threshold for an employee to meet. In such a scenario, a single tainted report by a single discriminatory manager in a personnel file may be sufficient to justify the imputation of liability to the employer. As the Tenth Circuit pointed out in BCI Coca-Cola, this standard ?weakens the deterrent effect of subordinate bias claims by imposing liability even where an employer has diligently conducted an independent investigation.?