How to Avoid “Cat’s Paw” Discrimination Claims – How Subordinate Bias Can Taint an Otherwise Non-Discriminatory Employment Decision


On March 1, 2011, the U.S. Supreme Court issued a pivotal decision analyzing the so-called “cat’s paw” theory of discrimination, under which employers may be liable for the discriminatory acts of a biased manager who influences, but does not make, an adverse employment decision. The term “cat’s paw” derives from a fable in which a monkey induces a cat to steal chestnuts from a fire and then absconds with the stolen nuts, leaving the cat with nothing but burnt paws. In the workplace context, the biased supervisor plays the monkey and the employer is the duped cat.

The standard adopted by the Supreme Court in Staub v. Proctor Hospital, adhered literally to the long-held doctrine that if improper bias is a “motivating factor” in an employment decision, the employer may be liable. However, in Staub, the Court announced that this remains the rule even if an unbiased company representative, acting unsuspectingly on tainted information, is the ultimate decisionmaker. Thus, under a “cat’s paw” theory, if a plaintiff can show that a biased supervisor’s discriminatory intent bears some direct relation to an adverse employment decision, the employer will be responsible despite a seemingly neutral decision-making process.

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