In the fable “The Monkey and the Cat,” the Monkey tricked the Cat into pulling tasty chestnuts out of a fire.  The Monkey then ate all of the chestnuts and the Cat got a severely burned paw. 

In employment law, the “cat’s paw” theory of liability applies when a neutral ultimate decision-maker acts as the conduit of a biased supervisor’s prejudice.  For example, in Madden v. Chattanooga Service Dept., 549 F.3d 666 (6th Cir. 2008), the plaintiff’s employment was terminated based upon his supervisor’s report that the plaintiff, who is black, set off firecrackers at work.  There was evidence that the same supervisor witnessed but did not report white employees who set off firecrackers.  The district court found that upper management acted as the cat’s paw of the biased supervisor by relying on the discriminatory flow of information the supervisor provided to end the plaintiff’s employment.

The federal circuit courts of appeal analyze liability based upon a cat’s paw theory in various ways.  Some circuits require proof that the biased supervisor actually caused the adverse employment decision at issue, while others only require that the biased employee influenced the decision.  The Sixth Circuit holds that a plaintiff may establish discrimination by showing a causal nexus between a decision-maker’s action and the supervisor’s discriminatory animus.  The split among the federal circuits makes the cat’s paw issue a good one for consideration by the U.S. Supreme Court.   

The Supreme Court is currently deciding whether to hear the case of Staub v. Proctor Hospital, which raises the cat’s paw theory in the context of a Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 (“USERRA”) case.   Staub, an army reservist, alleged that he was fired because a supervisor, who was anti-military, influenced the neutral ultimate decision-maker.  The Seventh Circuit Court of Appeals overturned a jury verdict in Staub’s favor, holding that the cat’s paw theory did not apply because the biased supervisor did not have “singular influence” over the ultimate decision-maker. Staub has filed a petition for a writ of certiorari to the U.S. Supreme Court.  Last month, the Supreme Court invited the Solicitor General to file a brief in the case.

The Supreme Court has granted certiorari on a couple of Title VII cat’s paw cases over the years, but each of them has settled prior to adjudication.  Though the cat’s paw theory continues to land on its feet so far, employers can avoid its effects by simply requiring their ultimate decision-makers to make an independent inquiry before taking adverse employment action against a worker.