Employer Liability and the "Cat's Paw" Theory

The delegation of authority by employers and reliance upon the multi-layered levels of management has complicated the American workplace in more ways than one. Certainly the head boss or bosses can't be everywhere every minute of the day, however, what's a boss to do when there are conflicting complaints by non-management-level employees and management has reason to suspect one of the complainers was engaging in unlawful harassment? Does crediting one over the other and taking disciplinary action open the door to legal liability? Most employers may not realize that such a scenario could invoke the "Cat's Paw" theory of liability.

As the late Justice Scalia wrote in the benchmark U.S. Supreme Court case Staub v. Proctor Hospital in 2011, "[t]he term 'cat's paw' derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law … in 1990. In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing." Id. at 415 fn. 1. In the context of employment law, the fable is used to describe an individual lacking decisionmaking ability who plays the role of the monkey and who manipulates or influences an otherwise unknowing decisionmaker (the cat) into acting upon the employee's unlawful bias. In Staub, the U.S. Supreme Court resolved a split among the Circuit Courts and concluded that if a supervisor performs an act motivated by discriminatory animus with the intent to cause an adverse employment action, and if that act is indeed a proximate cause of an adverse employment action ultimately taken, then the employer is liable for that supervisor's "bad acts." The Court nevertheless explicitly declined to resolve what the legal implications would have been had the "monkey" been a mere co-worker as opposed to a supervisor. 

In 2014 and 2016, however, the First and Second Circuits, respectively, answered the question of liability when the "monkey" is a co-worker left open by the U.S. Supreme Court. Relying on principles of agency law, these Circuit Courts both held that such principles may impose liability upon employers under a "Cat's Paw" theory even when co-workers are the ones engaging in unlawful discrimination. This course, presented by Casey Wolnowski of Phillips & Associates, PLLC, reviews "Cat's Paw" liability with a focus on the scenario of when the "bad actor" is a non- management-level co-worker. This presentation will also analyze the present state of the law in this area and the hurdles both employees and employers face in litigating such a case.

Learning Objectives:

1. Understand the underlying components of the "Cat's Paw" theory of liability
2. Recognize the issues attorneys may encounter in a "Cat's Paw" case
3. Analyze the undeveloped areas surrounding this theory
4. Identify the best ways to litigate a "Cat's Paw" case when representing both the employee and employer