In the fable of The Monkey and the Cat, as told by the seventeenth century French writer Jean de la Fontaine, Bertrand the Monkey convinces Raton the Cat to reach into a fire and pull out roasting chestnuts, promising him his share of the booty. Instead, as Raton pulls the chestnuts out of the fire, burning his paw in the process, Bertrand gobbles them up. They are interrupted when a maid enters the room, and Raton gets nothing.1 Since 1990, when the term “cat’s paw” was introduced into employment law jurisprudence by Judge Posner of the Seventh Circuit, it has been used to describe a situation in which a biased subordinate supervisor can be shown to have used a higher-level supervisor, with decision making authority, as a conduit for his discriminatory intent. An unlawful adverse action is inflicted upon an employee by an unwitting, but innocent decision maker, yet the act is attributable to the employer for purposes of asserting liability for discrimination. An example would be a scenario in which an employee with some supervisory authority, motivated by racial bias, falsely reports to his supervisor that a subordinate cheated on his time card. The higher-level supervisor, believing he has no reason to doubt the report, terminates the subordinate’s employment.
Although there are notable exceptions, in order to establish liability in most cases of intentional discrimination, or disparate treatment, a plaintiff must show that an unlawful reason (“protected class characteristic”) was “a motivating factor” for the adverse employment action upon which she brought her complaint.4 The Cat’s Paw doctrine is really just a mechanism used to evaluate the extent to which unlawful motive may have caused the adverse action. Not surprisingly, as the doctrine developed over the years, the circuit courts started to articulate differing standards, typically in terms of the level of influence the biased supervisor has over the decisionmaker. For instance, the Fifth Circuit found that liability could be established merely by showing that the subordinate “possessed leverage, or exerted influence” over the decisionmaker. At the other end of the spectrum, the Fourth Circuit held that the subordinate must virtually be the decisionmaker so that even having “substantial influence” or playing a “significant” role in the decisionmaking would be insufficient.7 In 2006, the Tenth Circuit took a simpler approach, holding that a plaintiff must establish more than mere “influence or input[,]” and the crux of the issue is “whether the biased subordinate’s discriminatory reports, recommendation, or other actions caused the adverse employment action.”
Two years ago, in Staub v. Proctor Hospital,9 the Supreme Court stepped in to review the circuits’ varying standards, using the language of causation in its analysis. Staub was an unlawful termination action brought under the Uniformed Services Employment and Reemployment Rights Act of 199410 (USERRA), which prohibits as a motivating factor in the imposition of an adverse employment action, an employee’s membership, or obligation to perform service in, a uniformed service.11 Mr. Staub had prevailed in a jury trial in the Central District of Illinois. The Seventh Circuit reversed, finding that Proctor Hospital was entitled to judgment as a matter of law. The Court found that Mr. Staub had failed to meet the Circuit standard, that is, he did not prove that the biased subordinate had exercised such “singular influence” over the decisionmaker that the decision to terminate was essentially one of “blind reliance.”
Vincent Staub was a member of the United States Army Reserve, which required him to drill one weekend per month and train full-time two to three weeks per year. The jury had found that both his immediate supervisor and her supervisor were hostile to his military obligations, believing them to be a waste of time and taxpayers’ money. The second-level supervisor reported to Proctor’s vice-president of human resources that Mr. Staub had left his desk without informing a supervisor in violation of a corrective action that had been imposed to address an alleged “availability” problem. Mr. Staub denied this accusation. The vice-president, relying on the accusation, and reviewing Mr. Staub’s personnel file, terminated his employment.
The Supreme Court reversed and remanded.14 The Court found that the Seventh Circuit had applied an incorrect standard under the Cat’s Paw doctrine. The Court said it should have looked to general tort law principles in its analysis.15 It stated that if the subordinate employee intended the adverse action to occur for discriminatory reasons, the required element of scienter was present; and, if his actions were the proximate cause of the ultimate adverse employment action, liability should attach. Proximate cause, the Court stated, requires only “some direct relation between the injury asserted and the injurious conduct alleged, and excludes only those links that are too remote, purely contingent, or indirect.”16 Even the decisionmaker’s exercise of judgment does not automatically render the causal link to the subordinate employee’s bias too.
The question is whether Raton’s judgment is a cause of sufficiently independent origin so as to supersede Bertrand’s malevolence.17 What if Bertrand’s offer had merely brought the chestnuts to Raton’s attention, and good kitty that he was, he simply acted to save them from burning so his guardian, the maid, would not get into trouble? One thing is certain – the metaphor is far from perfect! Anyway, thanks to the Supreme Court, we simply place the burden of the application of the Cat’s Paw doctrine on the jury, using the language of proximate cause. The jury gets to decide how convincing Bertrand really was.
