January 15, 2010

How Far Does “Cat’s Paw” Reach in Employee Unlawful Discrimination Cases?

An employee is fired by a company primary decision-maker with some level of input from another employee who, unknown to the decision-maker, has discriminatory or retaliatory motives. The employee files suit for unlawful discrimination. To what extent does the plaintiff need to prove the discriminatory/retaliatory bias influenced the decision to terminate? When does the employer become a “cat’s paw” and, therefore, liable?

Don’t know? Neither do the federal courts.

The term “Cat’s Paw” comes from a 17th century fable by Jean de La Fontaine called “The Monkey and the Cat,” in which a monkey convinces a cat to retrieve chestnuts from a fire. The cat burns his paw getting them out, and the monkey eats them all without leaving a single one.

An article on Law 360 newswire examined the various decisions by appeals courts on “cat’s paw” and looked to Leah Lively, chair of Lane Powell’s Labor and Employment Practice Group, for her perspective.

“You have almost three different schools of thought, so it’s definitely ripe for adjudication by the Supreme Court” … The middle ground, or causation standard, is the one likely to be favored by the justices, according to Lively, requiring as it would the same logic used by the high court in its seminal ruling on the mixed-motive theory of liability. In that ruling — Desert Palace Inc. v. Costa in 2003 — the Supreme Court found that direct evidence of discrimination was not required for a plaintiff to argue that discrimination, while not the sole reason for the contested employment decision, was nonetheless a motivating factor. “The same logic could apply for cat’s paw liability,” Lively said. “So if you have a nonbiased person and a biased person, the employer is not absolutely absolved under cat’s paw.”