[authors: Doug Hass and Sunghee Sohn*]
In March 2011, we discussed the Supreme Court’s expansion of the “cat’s paw” discrimination theory in Staub v. Proctor Hospital. The Court held that Title VII could impose liability on employers for discrimination if the decision maker acts as the “cat’s paw” and relies on input from lower-level supervisors who have discriminatory intent, even if the decision maker did not share those discriminatory motives. This summer, the Sixth Circuit and various district courts have started to better define, and even suggest expansions to, the cat’s paw theory.
Sixth Circuit Outlines the Classic “Cat’s Paw” Case, Highlighting Difficulties for Employers
A July decision by the Sixth Circuit Court of Appeals offered a classic example of the application of the cat’s paw theory to employers. In Chattman v. Toho Tenax America, Inc., Chattman alleged that Toho Tenax’s local HR director, who had recommended his discharge and fabricated that other supervisors supported the recommendation, acted out of racial bias. Even though the HR director was not the decision maker, the court concluded that summary judgment was inappropriate under the cat’s paw theory given the genuine issues of material fact that Chattman had raised. The Sixth Circuit concluded that the matter should have gone to a jury, and remanded the case for further proceedings. As we suggested last year in the wake of Staub, simply having a higher-level manager review an employment decision will not necessarily absolve an employer of liability for the bias of a subordinate. Practically, the Chattman decision shows the difficulty employers face in resolving these cat’s paw claims in a case’s early phases.
Northern District of Illinois Signals Potential Expansion of Cat’s Paw
In the Supreme Court’s Staub decision, the Court expressly declined to address “whether the employer would be liable if a co-workers, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.” In June, the Northern District of Illinois expanded liability one step further, holding for the first time that an employer may be liable under Title VII for a co-worker’s animus against another coworker. In Johnson v. Koppers, Marcia Johnson, an African-American woman, had clashed with her co-worker, Michael O’Connell, while working as a lab technician for Koppers. In July 2007, O’Connell complained to the plant manager that Johnson had yelled racially charged epithets toward him. The plant manager issued both Johnson and O’Connell warning letters based solely on O’Connell’s complaint. After another altercation where Johnson allegedly threw a book at O’Connell and pushed him, Koppers fired Johnson. She sued Koppers, alleging sex discrimination under Title VII in part because of O’Connell’s allegedly discriminatory actions that led to her discipline.
Koppers initially objected to Johnson’s claim that O’Connell’s alleged discrimination could make it liable under the cat’s paw theory. Koppers relied on Staub as evidence that the scope of cat’s paw was limited to the influence of supervisors with animus, not co-workers. The district court rejected this argument, comparing cat’s paw to other Seventh Circuit cases where the influence of coworkers and nonsupervisory employees on decision makers created liability for employers. Accordingly, while denying Johnson’s claim on its particular facts, the court determined that the cat’s paw theory could also apply to situations where co-workers influenced a decision maker to take an adverse employment action.
The Northern District’s decision departed from the analysis used by other district courts. For example, in Reynolds v. Federal Express, the Western District of Tennessee found it “inappropriate to step beyond the bounds of delineated authority” in Staub by imposing liability on employers for the discriminatory animus of non-decision makers. The Eastern District of New York adopted a similar literal reading in Abdelhadi v. City of New York. However, in 2009, the Fifth Circuit in DePree v. Saunders declined to foreclose the possibility that a decision maker could be a “cat’s paw of those who had no ‘influence or leverage over’ her final employment decisions,” such as co-workers in the right factual situation.
Impact for Employers
Staub has and will spawn more litigation on the applicability of cat’s paw to specific situations. If the Seventh Circuit adopts the district court’s reasoning in Johnson, or if the Fifth Circuit finds a co-worker with sufficient influence over a supervisor, it may set the stage for another Supreme Court decision. In the meantime, employers—particularly in the Seventh Circuit—must consider these new avenues of potential employer and individual liability.
The fact-intensive nature of cat’s paw cases, illustrated by Chattman, and the expanded scope of liability suggested by cases like Johnson should spur employers to continue to educate both supervisors and non-supervisors alike about discrimination and retaliation in the workplace. Employers must carefully investigate and document legitimate reasons for disciplinary actions, and work to minimize any “influence” by employees with potential animus.
* Sunghee Sohn is currently a law student at the Loyola University Chicago School of Law and is a 2012 Franczek Radelet LEADS Fellow.