The Supreme Court Will Decide Whether The Cat’s Paw Theory has Legs

Posted by marykeating on April 20, 2010 under Discrimination in employment | Be the First to Comment

Yesterday the Supreme Court agreed to decide a case involving the “cat’s paw” theory of discrimination.  The case will be argued and decided next term, so Justice Stevens’ replacement should be on board by then (barring a major Senate gridlock).  This theory of discrimination allows a plaintiff to show that, even though the decision maker who fired him was not biased against him, the biased person had influence over the decision or the decision maker.  The colorful name derives from a short story about a monkey who convinces a cat to retrieve chestnuts from the fire.  The monkey gobbles them up, but the cat has the burned paws.

This pops up in a lot of employment contexts.  A supervisor may not have the power to fire his subordinates, but he certainly has the power to write them up and do their evaluations.  If this person dislikes a subordinate because or his race or religion, for example, he can wage a campaign to get rid of the person.  He can make up stories or exaggerate encounters so that the person can be called “insubordinate,” or “a poor team player.  “This influence may be exercised
by, among other things, ‘supplying misinformation or failing to provide relevant information to the person making the employment decision.’”

The quote is from the case that the Supreme Court will hear, Staub v. Proctor Hospital.  Staub alleges that he was fired for being a reserve member of the military.  This action violates the Uniformed Services Employment and Reemployment Rights Act (USERRA).  Staub showed that one of his supervisors found his military schedule problematic and wanted him fired.  He won at trial, but the Seventh Circuit decided that there was too much evidence that the decision maker was independent of the biased subordinate’s influence, and used other, non-discriminatory reasoning to support his firing.  The appellate court reversed his win.

It is never safe to predict why the Supreme Court takes a case, or which way it will rule.  The Seventh Circuit faulted the trial court for not making a preliminary decision about whether there was enough evidence of “singular influence” by the biased supervisor to permit the cat’s paw theory to be presented to the jury.  The Supreme Court may focus on that issue, or may decide to bless or damn the entire theory.  Either way, it will be helpful to have guidance on the use of this theory of discrimination.