THE “CAT’S PAW” THEORY TO PROVE LIABILITY
IN
EMPLOYMENT DISCRIMINATION LITIGATION
By: Sarah Zinsmeister, Law Clerk
Sarah is a 2nd year law student at Cleveland State. She is currently
employed as a law clerk by Elfvin & Besser. The firm extends
its appreciation to Sarah for her work on this article.
Title VII of the Civil Rights Act of 1964 prohibits employers with 15 or more employees from discriminating on the basis of race, religion, color, sex, or national origin. The Federal Age Discrimination in Employment Act (ADEA) extends this protection from intentional discrimination to workers over forty years of age. To satisfy the burden of proof, an employee filing a complaint under either Act must provide evidence of the discrimination. At all times, plaintiff retains the burden. The employee may use direct or circumstantial evidence to establish the necessary elements under the four prong test adopted by the Supreme Court in McDonnell Douglass v. Green. The employee must show she was: 1) a member of the protected class, 2) qualified for the position sought, 3) rejected, and 4) after this rejection, the position remained open, and the employer continued to accept applications.
If successful, the burden of production shifts to the employer, who must articulate a legitimate, non-discriminatory reason for the adverse job action. Once this is achieved, the burden then shifts back to the employee, who must “produce sufficient evidence from which a jury may reasonably reject the employer’s explanation” as a mere pretext for discrimination. This is done by showing that the proffered reasons “1) had no basis in fact, 2) did not motivate the discharge, or 3) were insufficient to motivate the discharge.”
Principles of agency law are evident in Title VII and the ADEA, as they both similarly define “employer” to include “agent.” Title VII and the ADEA have borrowed from common law and apply the doctrine of respondeat superior (Latin for: “Let the master answer”). Under this theory, an employer is liable for intentional torts committed by its employees in furtherance of their employment. In Burlington Industry, Inc. v. Ellerth, the Supreme Court held that an employer can be liable for the discriminatory actions of subordinates, only if the subordinate acted as an agent of the employer.
The Seventh Circuit established the rule of vicarious liability under the ADA in Shager v. Upjohn Co. In Shager, the employee alleged that his termination was improper under the ADEA, because it was based on mere pretext for age discrimination. Shager’s immediate supervisor, Lehnst “not only set [him] up to fail by assigning him an unpromising [sales] territory,” but also recommended to the Career Path Committee (“CPC”) that Shager be fired. However, in order to find the company liable and maintain the action, Shager had to establish that the person who actually terminated him (in this case, the CPC,) did so because of a discriminatory animus. If proven, it follows that the company would then be liable for the acts of its subordinate under respondeat superior.
The court reasoned that there was sufficient evidence for Shager to meet his burden with respect to the actions of his immediate supervisor, Lehnst. However, the court noted that although Lehnst recommended that Shager be terminated, he was in fact actually fired by the CPC, which presumably “was not… deliberately violating the Act when it fired Shager on Lehnst’s recommendation.” Thus, if the CPC terminated Shager for reasons “untainted by any prejudice of Lehnst’s against older workers, the causal link between that prejudice and Shager’s discharge is severed, and Shager cannot maintain this suit even if Upjohn Co. is fully liable for Lehnst’s wrongdoing.”
To get around this obstacle, the court recognized that Shager would be able to maintain the suit if he could show that the CPC acted as a mere “rubber stamp,” or Lehnst’s “cat’s paw,” which allowed him to carry out his discriminatory goals. The “cat’s paw” is a reference to the fable “The Monkey and the Cat” in which a monkey persuades an “unsuspecting feline” to fetch chestnuts from a fire. The cat burns its paw in the process, while the monkey enjoys the fruits of the cat’s labor. This situation occurs in the workplace when a biased subordinate adversely influences an uninformed or neutral decisionmaker, resulting in a discriminatory employment action against a member of a protected class. The theory argues that because the discriminatory animus of the subordinate “tainted” the decision maker’s decision to terminate, the subordinate’s prejudice should be imputed onto the formal decisionmaker, which acted merely as a “cat’s paw” for the termination. The employer is then found liable for the discrimination as well, even though the ultimate decisionmaker did not have a discriminatory agenda.
However, the cat’s paw theory is not without limits. The court in Shager noted that if the employer was able to establish that the ultimate decisionmaker was not merely a cat’s paw, but instead acted on its own, then the employer would escape liability. This defense was refined in Rozskowiak v. Village of Arlington Heights. There, the court held that because the prejudiced subordinate was part of a group of seven who advised the ultimate decisionmaker in a consensus, the cat’s paw theory was not applicable. Thus, the biased subordinate must be the “singular influence” on the decisionmaker in order to impute liability. The court in Brewer v. Board of Trustees of University of Illinois further established that the decisionmaker cannot be “wholly dependent on a single source of information” and must conduct “her own investigation into the facts relevant to the decision” in order to properly escape liability.
The issue of whether the ultimate decisionmaker relied solely on the subordinate, or conducted their own independent investigation before terminating, has also been defined over time. In Willis v. Marion County Auditor’s Department, the court held that the decisionmaker had sufficiently made her own independent decision to terminate. There, the employee alleged that disciplinary actions taken against her for violation of the County policy were the result of her supervisor’s racial discrimination. The ultimate decision maker was aware that she filed a discrimination claim. The employee then alleged that her final violation of County policy occurred only after her supervisor “planted” unprocessed invoices in her file in retaliation to filing discrimination charges. Because the decisionmaker knew of the discrimination charges, she allowed the employee an opportunity to substantiate her claim before reaching the conclusion that she had indeed violated County policy, and should be terminated. The court held that both the objectivity of the violations, and the opportunity for the employee to provide more information, were sufficient to establish that the ultimate decisionmaker acted independently when making the termination decision.
Although introduced into the legal system relatively recently, the cat’s paw theory has been established as a viable theory and is a helpful tool for plaintiff’s lawyers in employment litigation.