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Understanding The "Cat's Paw" Doctrine in the Employment Context
May 14, 2007
The “cat’s paw” principle derives its name from a fable in which a monkey convinces a gullible cat to pull chestnuts from a hot fire. The cat snatches the chestnuts from the fire, each time singeing his paw, only to have the monkey eat all the chestnuts. Today, the term “cat’s paw” is generally used to describe a person who is unwittingly manipulated by another to accomplish his purposes.
In the employment discrimination context, “cat’s paw” refers to a situation in which a biased lower level supervisor, who lacks decision-making power, uses the formal decision maker in a deliberate scheme to trigger a discriminatory employment action.
Most federal appellate courts recognize some form of the “cat’s paw” doctrine. They widely disagree, however, on the level of control – or degree of influence – the lower level manager must exercise over the adverse employment action in order to impute the subordinate’s bias to the employer and hold it liable under Title VII or another anti-discrimination statute. Certain appellate courts, including the First, Third, Fifth, and Ninth circuits, generally will uphold a “cat’s paw” claim where the allegedly biased subordinate exerted any demonstrable influence over the decision resulting in an adverse employment action. At the opposite extreme is the Fourth Circuit, which holds that even substantial influence over the decision is insufficient; rather, the decision maker must be such a “cat’s paw” that the biased subordinate is either the actual decision maker or principally responsible for the decision.
Falling between these two standards are those appellate courts, including the Tenth Circuit, which require evidence that the biased subordinate caused the adverse employment action through his or her discriminatory recommendations, reports or actions.
In EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476 (10th Cir. 2006), an African-American employee, Stephen Peters, who worked in New Mexico, was terminated for insubordination by a human resources manager located hundreds of miles away in Phoenix, Arizona. The manager had never met the employee and did not know his race. Peters’ supervisor, Cesar Grado, had made several calls to the manager complaining about Peters, first about his “insubordination” stemming from his refusal to work on a specific Sunday, and then after he failed to report for work on that day.
Based upon Grado’s version of the events, as well as two prior refusal-to-work incidents, the human resource manager decided to fire Peters. At the time the manager made the decision, she was unaware that Grado, who was Hispanic, allegedly had a history of discriminating against black employees.
The EEOC filed a race discrimination lawsuit on Peter's behalf against BCI. The complaint alleged that the supervisor, Grado, treated the company’s black workers differently from its Hispanic employees, and that the human resources manager acted as Grado’s “cat’s paw” when she fired Peters.
The lower court granted BCI's motion for summary judgment on the ground that the “cat’s paw” theory did not apply, because, even if Grado was biased he did not make an official recommendation to the human resources manager to terminate Peters and the manager did not rely solely on Grado’s account of the incident in deciding to do so.
The EEOC appealed the trial court’s ruling to the U.S. Court of Appeals for the Tenth Circuit. The appellate court disagreed with the standard applied by the lower court, holding that, in a “cat’s paw” case, the employer may be liable for discrimination if “the actions of the biased subordinate caused the employment action.” Following this standard, the appellate court found that there was sufficient proof of causation to warrant a trial.
Although the U.S. Supreme Court agreed to review the Tenth Circuit's decision, in April 2007, a week before oral argument, BCI withdrew the case. Shortly thereafter, the Supreme Court denied review to two “cat’s paw” cases emanating from the Fourth Circuit, which, as noted above, applies the most rigorous standard of all the circuits.
The Bottom Line
The importance of the “cat’s paw” doctrine is that an employer may be liable for a subordinate’s alleged bias, even though the manager who actually makes the adverse employment decision does not harbor discriminatory animus and is unaware of the subordinate’s alleged bias. Regardless of the applicable “cat’s paw” test,” however, all employers can help ensure the effectiveness of their decision-making process by requiring that the actual decision makers conduct an independent investigation before taking adverse action against an employee.