Frank A. Gumina
Wednesday, August 22, 2007

"Cat's Paw" Discrimination Theory: Avoid Losing All Nine Lives

Generally, the term “Cat’s Paw” is used to describe a person who is unwittingly manipulated by another to accomplish his or her purposes. In the context of employment discrimination, “Cat’s Paw” refers to a theory of liability in which an employee, without formal authority to alter the terms and conditions of an employee’s employment and who harbors an unlawful discriminatory animus, influences the employer in making an adverse employment decision, such as a termination, by supplying the decision-maker misinformation or failing to provide relevant information. Under this theory, an employee can prevail in a discrimination suit even if the employer can successfully establish that the actual decision-maker harbored no discriminatory animus towards the employee if the employee can show that the decision-maker’s decision was influenced by another employee who did harbor an unlawful discriminatory animus towards the employee. In such a scenario, the discriminatory actions of the employee without formal authority are imputed to the employer and the employer will be found in violation of Title VII.
Recently, federal courts have given support for this theory of liability against employers. In a recent case prosecuted by the U.S. Equal Employment Opportunity Commission, a federal court of appeals found a company liable for unlawful discrimination using the “Cat’s Paw” theory, even though the evidence clearly showed that the decision-maker harbored no discriminatory intent, where the court found that the employer failed to conduct an independent investigation into the informant’s complaint that resulted in the employee’s termination.
The reemergence of the “Cat’s Paw” theory of liability highlights the importance of employer’s conducting diligent and independent investigations prior to employment terminations. Employers should also be mindful that under the “Cat’s Paw” theory, the employee supplying the information need only have some influence, rather then significant influence, over the decision-maker, to impose Title VII liability. Consequently, a decision-maker’s mere “paper review” of the informer’s recommendation, without conducting an independent investigation, will not shield the employer from liability if the recommendation is racially motivated. By contrast, these cases also hold that where a decision-maker is not wholly dependent on a single source of information, but instead conducts its own independent investigation into the facts relevant to the adverse employment decision, the employer will not be held liable for an employee’s submission of misinformation to the decision-maker.
Proper investigations prior to termination should include interviewing the affected employee to get his or her side of the story as well as independently interviewing other relevant witnesses and reviewing relevant documents. Although an employer often must decide what to do based upon nothing more than conflicting stories of two different employees, the employer will not be liable for the alleged discriminatory animus of the informant so long as the employer independently considers both stories. The ability to demonstrate due process through an independent investigation supported by good documentation is one of the best ways to make good employment decisions and to avoid unnecessary liability under the law.
Whyte Hirschboeck Dudek S.C. employment attorneys regularly counsel employers through investigations and termination decisions. If you have questions concerning how to conduct a proper investigation, please contact your WHD attorney or Attorney Frank A. Gumina at (414) 978-5387.
This article appeared in the Summer 2007 Edition of the WorkPlace, Presented by the Human Resources Law Practice of Whyte Hirschboeck Dudek S.C.

Related Practice Areas:

Employee Benefits

Human Resources Law

Labor & Employment