In some circumstances, an employer may be on the hook for a discrimination claim brought by a current or former employee—even if the employer did not have discriminatory intent. Because a company’s subordinates act on behalf of their employer, a subordinate’s discriminatory motive can sometimes carry over to the employer itself. Thus, when the subordinate either takes or recommends a negative employment action based on the subordinate’s biased intent, an employer who follows the recommendation may unknowingly further the subordinate’s hidden agenda and, as a result, create a discrimination claim against the employer. This is referred to as the “cat’s paw” theory.
HISTORY OF THE “CAT’S PAW” THEORY
The “cat’s paw” theory of employment liability takes its name from a fable by Aesop, “The Monkey and the Cat.” In the fable, a hungry monkey uses flattery to coax a cat to snatch roasting chestnuts from a fire. The cat follows along, burning its paws in the process. The monkey, unharmed, disappears with the snack, leaving the cat with nothing.
Courts first applied this “cat’s paw” theory to employment law in 1990 in a case called Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990). In that case, the plaintiff claimed that he was terminated by his supervisor based on age. However, the supervisor did not have authority to terminate the employee; the employee was instead terminated by the company’s internal employment committee—but on the allegedly-biased supervisor’s advice. The court noted that the “cat’s paw” scenario occurs when an employee or supervisor with a discriminatory motive dupes a decision-maker into taking an adverse employment action based on such motive. When this occurs, “the innocence of [the biased employee or supervisor] would not spare the company from liability.” Id. at 405. More specifically, a subordinate’s bias is attributed to his or her employer where the resulting adverse employment action “was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process.” Poland v. Chertoff, 494 F.3d 1174, 1182 (2007).
AVOID RUBBER STAMPING
Under the “cat’s paw” theory, bias can taint an employment decision before the decision is even made. Because of this, courts have advised employers not to “separate the decisionmaking function from the investigation and reporting functions” because “bias can taint any of those functions.” Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007). Thus, it is important that decision-makers avoid “rubber stamping” the decisions of subordinates—an act that creates a possibility of simultaneously “rubber stamping” a subordinate’s hidden unlawful motive. Instead, employers should conduct an independent investigation into a subordinate’s recommendation.
INSIGHTS FOR GF CLIENTS
To avoid being on the hook in a “cat’s paw” scenario, make sure to do the following in each negative employment action:
- Document employees’ performance.
- Avoid relying on the word of one employee in taking personnel actions.
- Perform an independent investigation into the circumstances before taking action and ensure that the reasons behind the employment decision are documented.
- Be aware of potential biases of the reporting individual, supervisor, investigator, or any other individuals involved in the reporting, investigation, and/or ultimate decision.
Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other issues facing your company.