The “cat’s paw” doctrine is a theory of liability that allows an employee to prove discrimination in an employment decision where the decisionmaker herself is unbiased. Under the theory, the discriminatory motive of a non-decisionmaker is imputed to the decisionmaker (and employer) where the discriminator has some significant influence that leads to the adverse employment action.

The phrase “cat’s paw” comes from a French fable, “The Monkey and the Cat,” made famous by the 17th Century poet Jean de la Fontaine.¹ In the fable, a cunning monkey persuades a naïve cat to snatch chestnuts from a fire. The cat burns her paw while the monkey eats the chestnuts. From this story, the term “cat’s paw” has come to mean a “tool” or “one used by another to accomplish his purposes."

In employment discrimination cases, a “cat’s paw” scenario is presented where a biased official of an employer, who lacks decisionmaking power, uses the formal decisionmaker as a dupe (or “rubber stamp”) in a deliberate scheme to trigger a discriminatory employment action.² It is also referred to as the “rubber stamp” theory of liability, or “subordinate” liability, because a subordinate official or lower-level supervisor with discriminatory bias is the motivating force.³

On April 19, 2010, the U.S. Supreme Court accepted an appeal from a decision by the Seventh Circuit of the U.S. Court of Appeals, Staub v. Proctor Hospital.⁴ The Solicitor General’s office, on behalf of the Obama Administration, had previously filed an amicus brief contending the Court should take up the case and recognize the theory in a broad form. Staub provides a nice fact-pattern for understanding the theory.

Staub v. Proctor Hospital

In the Staub case, Vincent Staub was a medical technician at Proctor Hospital who lost his job after prolonged disputes with supervisors. His supervisors viewed these disputes as related to his lack of availability, poor attitude, and lack of communication, but Staub believed the disputes related to the refusal of his immediate supervisor to accommodate his time commitment as a member of the United States Army Reserve. After his firing, Staub sued under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA),⁵ arguing that his firing was based on discrimination against him for his military reserve membership.

The second-in-command of Staub’s department at the hospital was openly hostile to his reserve duties. For instance, she scheduled him for additional shifts without notice, saying that the extra shifts were a way for him to pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserves. She also posted notices asking for other employees to cover Staub’s weekend shifts when military obligations required that he change his schedule, and called his military duties “bullshit.”⁶ The department head also made a comment that Staub’s reserve duties consisted of a bunch of smoking and joking and a waste of taxpayer’s money. Around the time when Staub received an order to report for “soldier readiness processing” – a precursor to another deployment – he received a written warning for failing to pick up work and failing to be available for work in his department. Staub disputed that such a policy existed, or that he had not been available, but the department head signed off on the written warning. Under the terms of the warning, Staub was to report to the department head or deputy whenever he needed to leave his work station. Within weeks, the department head reported to the hospital’s Vice President of Human Resources that Staub would frequently disappear from the department, and was failing to report in as instructed pursuant to the written warning. Based on that report and a review of Staub’s file, the Vice President of Human Resources decided that Staub should be fired.

A jury in federal court found in favor of Staub. Staub argued to the jury that the discriminatory motive of the deputy director should be attributed to the HR Vice President, and therefore to the hospital. Staub persuaded the jury that the deputy director of the department fed false information to the HR decisionmaker, and that this was motivated by his membership in and activities with the military reserve.

The Seventh Circuit reversed and dismissed the case. The Court reasoned that the “cat’s paw” theory was inapplicable in the case, because the decisionmaker took an independent look at the evidence and conducted her own review of the facts relevant to the decision. The Court reasoned that to be a “cat’s paw” requires more – it requires that a decisionmaker have “blind reliance” on the discriminator, and that the employee show that the discriminator exercised a “singular influence” over the non-discriminatory decisionmaker.⁷

EEOC v. Coca-Cola Bottling

In January 2007, the U.S. Supreme Court had agreed to review the “cat’s paw” theory in the case of BCI Coca-Cola Bottling v. Equal Employment Opportunity Comm’n,⁸ but that case ended after the EEOC and the employer agreed to a settlement after the Court granted certiorari.⁹ The Tenth Circuit Court of Appeals’ opinion in BCI Coca-Cola Bottling adopted a much broader theory of “cat’s paw” liability for employers, reasoning that “holding employers accountable for the actions of biased subordinates . . . advances the purposes of Title VII.”¹⁰ The Court further expressed concern that an overly narrow view of “subordinate liability” claims might allow employers to evade discrimination claims by showing willful blindness to discrimination by subordinate supervisors, allowing decisionmakers to ratify those actions because they never interact with the employees. In the Tenth Circuit’s view, an employer could defeat a “cat’s paw” claim by “simply asking an employee for his version of events” in some minimal predisciplinary meeting. Such a rule would give employers a “powerful incentive to hear both sides of the story before taking an adverse employment action against a member of a protected class.”¹¹

The Obama Administration’s Position on the Theory

In the Solicitor General’s amicus brief, the Obama Administration takes the position that the “cat’s paw” theory should be recognized by the Court, and expanded from the Seventh Circuit’s interpretation that an employee must show that a supervisor who is not also a “decisionmaker” exercises “singular influence” over the adverse employment action.¹² The Administration argues that the Seventh Circuit’s standard of “singular influence” is too narrow, and that this case is an appropriate one for creating a uniform standard for the “cat’s paw” theory among the Circuits of the Court of Appeals.¹³

Practical Considerations

Until the Supreme Court issues its opinion in the Staub case, Ohio employers are subject to the Sixth Circuit Court of Appeals’ application of the “cat’s paw” theory. The Sixth Circuit has required plaintiffs to show that a biased supervisor had done more than merely influenced the decisionmaker. To establish liability, a plaintiff must usually show that the discriminatory supervisor played a role in the decisionmaking process or that the adverse employment action would not have occurred but for the biased supervisor’s actions.¹⁴

To protect themselves from a potentially broader interpretation of the theory emerging from the Supreme Court, cautious employers might consider the practice endorsed in the BCI Coca-Cola Bottling case, wherein decisionmakers and human resources administrators do not merely rely on information from one direct supervisor in making a disciplinary decision, but instead investigate the underlying facts before taking adverse employment action. Employers who offer some form of a predisciplinary conference are taking a step toward inoculating themselves from “cat’s paw” liability because the employee is given an opportunity to respond to the charges to a more neutral party.

Rory P. Callahan
Assistant Attorney General

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¹  See, e.g. Staub v. Proctor Hospital, 560 F.3d 647, 650 (7th Cir. 2009).
²  See EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th Cir. 2006)(citing Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998)).
³  See id.
⁴  560 F.3d 647 (7th Cir. 2009), cert. granted, 2010 U.S. LEXIS 3333 (Apr. 19, 2010).
⁵  38 U.S.C. §§ 4301 et seq.
⁶  Staub, 560 F.3d at 652.
⁷  Id. at 658.
⁸  549 U.S. 1105 (2007).
⁹  549 U.S. 1334 (2007).
¹⁰  BCI Coca-Cola Bottling, 450 F.3d at 486.
¹¹  See id., 450 F.3d at 487.
¹²  See Brief for the United States as Amicus Curiae, Staub v. Proctor Hospital, U.S. Docket No. 09-400 (March 16, 2010).
¹³  See id., (III).
¹⁴  See, e.g, Noble v. Brinker Int’l., Inc., 391 F.3d 715, 723 (6th Cir. 2004).