Cat’s Paw – Liable for Discrimination

Cat’s Paw” is an independent theory of liability. Courts have made it clear that intent to discriminate need not come from the formal decision-maker if that formal decision-maker was merely the tool of someone with discriminatory animus.

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The seminal case of Reeves v. Safeway Stores, Inc. (2004) 121 Cal. App.4th 95, 113-114 provides significant guidance eon this issue.

As the Reeves court explained:

“to establish an entitlement to judgment as a matter of law, it is not enough to show that one actor acted for lawful reasons when that actor may be found to have operated as a mere instrumentality or conduit for others who acted out of discriminatory or retaliatory animus, and whose actions were a but-for cause of the challenged employment action.

If a supervisor makes another his tool for carrying out a discriminatory action, the original actor’s purpose will be imputed to the tool, or through the tool to their common employer.” Reeves v. Safeway Stores, Inc. (2004)121 Cal. App.4th 95, 113.

As the Reeves court further noted, quoting Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, 404-405, this is longstanding authority that particularly applies to decision-makers who rely on subordinates for information:

“Lehnst’s influence may well have been decisive. The committee’s deliberations … were brief, perhaps perfunctory… A committee of this sort, even if it is not just a liability shield invented by lawyers, is apt to defer to the judgment of the man on the spot. Lehnst was the district manager; he presented plausible evidence that one of his sales representatives should be discharged; the committee was not conversant with the possible age animus that may have motivated Lehnst’s recommendationIf it acted as the conduit of Lehnst’s prejudice-his cat’s-paw-the innocence of its members would not spare the company from liability.

For it would then be a case where Lehnst, acting within (even if at the same time abusing) his authority as district manager to evaluate and make recommendations concerning his subordinates, had procured Shager’s discharge because of his age. Lehnst would have violated the statute, and his violation would be imputed to [the employer].” (Bold emphasis added; italics added by Reeves court) Reeves v. Safeway Stores, Inc. (2004) 121 Cal. App.4th 95, 113-114

Reeves goes on to cite the long line of cases approving this cat’s paw theory of liability, including those making it clear that the discriminatory animus can come from regular employees such as Russell v. McKinney Hosp. Venture (5th Cir. 2000) 235 F.3d 219, 226 “[“[i]f the employee can demonstrate that others had influence or leverage over the official decisionmaker, and thus were not ordinary coworkers, it is proper to impute their discriminatory attitudes to the formal decisionmaker“]”, English v. Colorado Dept. of Corrections (10th Cir. 2001) 248 F.3d 1002, 1011″ [to recover under cat’s paw theory, plaintiff “must show ‘that the decisionmaker followed the biased recommendation [of a subordinate] without independently investigating the complaint against the employee‘”]”, and others. Reeves v. Safeway Stores, Inc. (2004) 121 Cal. App.4th 95, 114-116.

In addition to these two federal circuit cases cited by Reeves, the Reid court also made it clear that there is no requirement that the actor with discriminatory animus actually be a supervisor or manager to the Plaintiff, stating: “If [the formal decision maker] acted as the conduit of [an employee’s] prejudice-his cat’s paw-the innocence of [the decision maker] would not spare the company from liability.” Reid v. Google (2010) 54 Cal. 4th 512, 542 (internal citations omitted). If any employee with discriminatory intent influences the decision-makers, the company is liable.

If you are unsure if a specific employee at work is the responsible party, you may need to contact an employment attorney.

Understanding the Fable

Cat’s Paw originates from the fable of the “The Monkey and the Cat.” The fable dates back to the 17th century. The fable consists of a monkey persuading a cat to gather chestnuts from a fire. The monkey then takes the reward (the chestnuts) for himself and leaves the cat with a burnt paw. This fable resulted in the English idiom – cat’s paw. In almost all instances, a reference to a cat’s paw is associated with one doing another’s dirty work. This seemingly simple fable has been implemented into employment law, specifically employment discrimination law.

Cat’s paw liability describes a situation in which an employer or supervisor is motivated by some sort of discriminatory intent to influence an otherwise unbiased decision-maker to make a negative employment decisionagainst an employee. In this situation, even though the decision-maker was manipulated by someone with discriminatory intent, the employer is still held liable for the discriminatory action against the employee.

Understanding the Law

There have been recorded instances of courts citing the fable since 1990. Before an important change to the law in 2011, employers were only held liable if the biased party (non-decision maker) exercised singular influence over the decision to subject the targeted employee to discrimination. Employers could avoid liability for the discriminatory action given that the employer (decision-maker) investigated the situation prior to making the discriminatory decision.

As mentioned, the law changed in 2011. Staub v. Proctor Hospital resulted in significant changes that held the employer liable if all three of the following conditions are met:

  • A non-decision-making party (who is also the targeted employee’s supervisor) has discriminatory or retaliatory intentions
  • The biased non-decision-making party does something to cause the targeted employee to suffer a negative employment action
  • The biased non-decision-making party’s action is a direct cause of the negative employment action taken by the employer

What does this mean specifically? Prior to 2011, employers could renounce liability based on the fact that they investigated the situation prior to making the decision. However, Staub v. Proctor Hospital upheld that employers could be held liable as long as the biased non-decision-making party’s influence is a factor in the overall decision. Staub v. Proctor Hospital 562 U. S. (2011).

Cat’s Paw Liability and Employment Claims without Non-Supervisors

Cat’s paw liability can result in employers being held liable for discriminatory employment actions are influenced by supervising parties. However, it is not always the supervising parties that influence the decision-making employer. Non-supervising parties, such as other same-level employees (as the targeted employee) and co-workers, could influence a decision-making employer with their own discriminative motives. What if the discriminatory employment actions are influenced by non-supervising parties – such as other employees on the same level as the targeted employee?

Thomas Burlington v. News Corporation, Et Al. (2014) uphold that cat’s paw could apply to result in employers facing liability for discriminatory action against targeted employees only if the following two statements are true:

  • The employer was negligent in allowing the biased party (co-worker or another employee) to influence the employment decision
  • The employer helped the co-worker/employee in some way to achieve the cat’s paw plot against the targeted employee

In other words, the employer should have not allowed the biased influence of the non-supervising employee to result in the discriminatory employment decision.

Is Cat’s Paw Liability Applicable to All Employment Claims?

Does cat’s paw apply to all employment claims? Typically, cat’s paw liability can only apply to employment claims related to discrimination – specifically, when discrimination is a factor in the negative employment action suffered by the targeted employee. Cat’s paw liability generally applies in cases in which the discriminative employment action violates any federal or state anti-discrimination laws, such as Title VII of the Civil Rights Act, the ADA, the FMLA, and California’s FEHA, for example. As previously mentioned, cat’s paw only applies when discrimination is the motivating factor in the employment action, be it termination, demotion, or any other negative employment action.

What Should Employees Look Out for in the Workplace?

After being subjected to discriminatory employment action in the workplace, there are a number of things that employees should look out for. These specific things might allow employees to identify elements that could be used against their employers in a cat’s paw claim. Happy employees might not be able to see the clear signs of cat’s paw in the workplace; however, wrongfully terminated employees might be able to spot the signs of cat’s paw – especially after being directly affected and subject to adverse employment decisions.

Consider the following signs that employees might be able to spot in their workplace, making pursuing a cat’s paw liability claim a possibility:

  • A lack of information and training regarding specific discrimination, harassment, and retaliation policies
  • A lack of policies or a lack of a straightforward system to report incidents, handle claims, and keep incidents filed
  • A failure to address reports of discrimination promptly and efficiently
  • A failure to back-up negative employment decisions with legitimate business-related reasons
  • A failure to follow a clear, reasonable process prior to reaching a negative employment decision
  • A failure to have an open-door policy that allows employees to come forward to discuss any negative employment decisions when these decisions seem unfair or unfounded
  • A failure to subject all employees to the same policies

If you notice any of the discrepancies above in your place of work, your negative employment action might have been motivated by discrimination. If a supervisor or a co-worker was discriminatory towards you and you suffered an adverse employment action, cat’s paw might be relevant to your situation. Because of this, it is important that you allow an expert on employment law to review your claim.

Employees Can Take Action

When negative employment actions are taken against employees, employees might not understand the reasoning behind the negative employment action. In many cases, employees are aware that a coworker or a supervising party (not decision-makers) have been discriminative in the past. This fact alone is enough to begin a cat’s paw claim. If the non-decision-making party influenced the decision-making employer, an investigation after the employee pursues legal action could quickly establish cat’s paw liability.

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