Ferrara Fiorenza P.C.

“Cat’s Paw” Discrimination: What is it? And, What Does it Mean for Your Company?

In a recent decision, the U.S. Supreme Court clarified when employers can be held liable for discrimination under so-called “Cat’s Paw” situations.  The phrase “Cat’s Paw” comes from a 17thcentury Aesop fable about a monkey and a cat.  In this fable, the monkey dupes a cat into stealing chestnuts from a fire.  While the cat’s paws are burning, the monkey gets away with the chestnuts.  This story is used a metaphor to describe a situation where a supervisor with discriminatory motives (the monkey) gets the employer decision maker (the cat) to take adverse employment action against an employee. 

Both federal and state courts have been split on the issue of whether an employer should be held liable under these circumstances.  The Court has now ruled that if the supervisor with the improper discriminatory motive is the “proximate cause” of the adverse employment action, the employer is liable for employment discrimination.  Staub v. Proctor Hospital, 562 U.S. __(March 2, 2011). 

In Staub, a supervisor with an anti-military bias wanted to replace an employee with military leave rights.  The supervisor was alleged to have lied about the employee’s performance problems in order to get the employee fired.  The supervisor did not have the authority to fire the employee or any official input into such a decision.   However, the ultimate decision-maker for the employer only did a cursory investigation of the supervisor’s claims and in due course fired the employee based on the supervisor’s account of the events.  

The Court held that under the Uniformed Services Employment and Re-employment Rights Act (USERRA), an employer is liable if: 

A supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and … if that act is the proximate cause of the ultimate employment action. 

The Court concluded that there was sufficient proof that the employee’s supervisor intended his actions to result in the employee’s discharge and those actions were the proximate cause of the discharge. 

This new “proximate cause” standard is a higher standard than previously required in the 2ndCircuit (the federal circuit with jurisdiction over New York).  In the 2ndCircuit, “Cat’s Paw” plaintiffs were required to show only that biased non-decision makers played a “meaningful role in” or “had influence in” the adverse employment action.  Under Staub, plaintiffs will now have to prove that the action was the cause of the employment decision as opposed to merely influencing it. 

It is important for employers to note that the Court cited the fact that the employer failed to do a thorough and impartial investigation of the allegations which led to the employee’s termination.  The lesson in this case for all employers is to carefully scrutinize all disciplinary actions.  Never terminate an employee without first performing an investigation in which you: 1) investigate the claims by a supervisor or any other employee; 2) try to corroborate the claim by seeking independent witness statements or other evidence; and 3) obtain the employee’s side of the story.  Then, after weighing all of the relevant evidence, reach a final determination about the appropriate disciplinary action to take, if any. 

If you have any questions regarding “Cat’s Paw” discrimination, please contact us at 315-437-7600.


Excerpted from the June 2011 edition of "Employment Law Matters".  To see the entire newsletter, please click here.