Labor: Doggedly Avoiding The “Cat’s Paw”

Employers can prevent discrimination-based claims following employee terminations.

No responsible employer would let a supervisor discipline, demote, or terminate an employee if the employer knew that supervisor had a discriminatory bias against employees of that race, gender, religion, national origin or other protected status. A supervisor who is known for making racist statements or one who harasses and demeans women would not likely be retained as an employee, let alone be empowered to make employment decisions.

But some employers rely too heavily on the “flipside” of this idea. They believe that they are safe if the supervisor making the employment decisions is not personally a part of those issues, even where there are some claims or evidence of discrimination or harassment. But the “cat’s paw theory,” which the Supreme Court recently endorsed and had been gaining ground in recent years, can make relying on the supposedly isolated supervisor’s decision very dangerous.

Ultimately, an executive terminated the employee based, in part, on these criticisms and discipline. There was no evidence the executive disliked the employee’s military commitments or took his military status into account in the termination. But the employee argued that since the supervisors’ criticisms and discipline were considered by the executive, and these criticisms were false and were based on the supervisors’ dislike of his military status, the decision was discriminatory too. Thus, to use the analogy of the cat’s paw again, the supervisors (monkeys) got the executive (cat) to carry out their goal of getting rid of the employee (and here it was for improper reasons prohibited by USERRA).

The Supreme Court found that the “cat’s paw” theory was properly used by the employee to hold his former employer liable for discrimination. The Court ruled that an employer is liable for discrimination when:

The Court also rejected the idea that a decision maker performing an “independent investigation” and reaching the same conclusion was an absolute defense to the cat’s paw theory. Only where an investigation independent of the underlying discriminatory animus and action resulted in the decision maker finding unrelated reasons to take the same action would such an investigation enable the employer to avoid liability for the supervisor’s discriminatory intent and act.

While the Staub case dealt with discrimination of military members, the decision will apply to Title VII claims of race, gender, national origin or religious discrimination. The Court itself noted that the relevant statutory language in USERRA and Title VII are quite similar. So, this approval of the cat’s paw theory means employers cannot simply accept without further consideration the recommendations of others in supervision to make an employment decision.


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Evan Pontz

Evan Pontz is a partner in the Labor & Employment practice of Troutman Sanders. He specializes in employment and labor law matters, including employment discrimination...

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