Cat’s Paw Liability – Cute and Furry? Not at All

Cat’s Paw liability arises when an employee plaintiff establishes that the person responsible for a discriminatory or retaliatory action, while personally lacking discriminatory intent, undertakes the adverse employment action in reliance on another decision-maker’s discriminatory animus.  As Judge Richard A. Posner of the 7th Circuit explained:

In the fable of the cat’s paw (a fable offensive to cats and cat lovers, be it noted), a monkey who wants chestnuts that are roasting in a fire persuades an intellectually challenged cat to fetch the chestnuts from the fire for the monkey, and the cat does so but in the process burns its paw. In employment discrimination law the “cat’s paw” metaphor refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action. So if for example the subordinate has told the supervisor that the employee in question is a thief, but as the subordinate well knows she is not, the fact that the supervisor has no reason to doubt the truthfulness of the accusation, and having no doubt fires her, does not exonerate the employer if the subordinate’s motive was discriminatory.

Cook v. IPC Int’l. Corp., 673 F.3d 625, 628 (7th Cir. 2012).

Cat’s paw liability might also arise where, for example, a subordinate conceals information from a decision-making employee based on the subordinate’s bias.  

From a defense standpoint, if the decision maker shows they were not simply a cat’s paw, but instead undertook an independent investigation of the circumstances surrounding the employee plaintiff’s proposed termination, liability will not attach because the “causal link between the subordinates’ retaliatory intent and the plaintiffs’ terminations would be broken.”  Morrissette v. Honeywell Bldg. Solutions SES Corp., 2011U.S. Dist. LEXIS 92728, 19-21 (D.R.I. Aug. 17, 2011).  Further, if the defendant employer can show that neither the decision-maker nor the person who influenced the decision-maker had knowledge of the protected activity when making the decision adversely affecting the employee plaintiff, the plaintiff will not be able to prove cat’s paw liability.

For employers, an understanding of cat’s paw liability necessarily serves as a reminder of how important it is to have clear policies and procedures for disciplining or terminating employees, including the conduct of investigations and whether, and in what circumstances, an adverse employment decision can be made based solely on the recommendation of a single decision maker.

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