Saturday, February 3, 2018

Cat's Paw Discrimination Tips

By John V. Berry,
We often hear the phrase “Cat’s Paw” discrimination, but it is little understood by most individuals and even some lawyers. This article hopes to clarify what this type of discrimination is for employees. Cat’s Paw discrimination cases come up often in private sector and federal employee cases. In short, a “Cat’s Paw,” is used to describe an individual motivated by discrimination who influences innocent decision makers into making a illegal decision. This is referred to as Cat’s Paw discrimination. This can apply to both federal and private sector employment cases before the Equal Employment Opportunity Commission (EEOC) or in courts.
Background of Cat’s Paw Theory
The term "Cat’s Paw" comes from a verse by the famous Judge Posner in 1990, involving a fable. In the story, a monkey induces a cat, through the use of flattery to extract roasting chestnuts from a fire.  After the cat has been conned into reaching through fire and obtaining the chestnuts, it has burned its paws and the monkey then makes off with the chestnuts, leaving the cat nothing.  Staub v. Proctor Hosp., 562 U.S. 411, 415 fn. 1 (2011).
As the concept was explained by the Supreme Court:
The 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 by Posner 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. A coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king’s behalf and receive no reward.
Id. at 415, fn.1.
The “cat’s paw” discrimination theory now “refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action,” Cook v. IPC Intern. Corp., 673 F.3d 625, 628 (7th Cir. 2012). Basically, the idea is that someone can wash their hands of being accused of discrimination by urging others to take action against an employee.
Tips in Proving a Cat’s Paw Discrimination Case 
Under the “cat’s paw” discrimination theory of liability, an individual must show that a supervisor’s discriminatory actions were a but-for cause of the adverse employment decision. See Staub v. Proctor Hosp., 562 U.S. at 422. “[I]f a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under [the Act].”).  See Goodsite v. Norfolk Southern Ry., 573 Fed. Appx. 572, 585 & n.7 (6th Cir. 2014) (suggesting that the causation standard for the underlying statute applies under a “cat’s paw” theory of liability).
A “cat’s-paw” discrimination theory exists where “a formal decision maker may be an unwitting conduit of another actor’s illicit motives.” Walker, 798 F.3d at 1095 (citing Griffin v. Wash. Convention Ctr., 142 F.3d 1308, 1311-12, 330 U.S. App. D.C. 81 (D.C. Cir. 1998)). In order to prevail, there is essentially a 3-part test, which is still evolving as the courts hear new cases.  That test is as follows:

1. A supervisor performs an act motivated by retaliatory animus;

2. The act is intended by the supervisor to cause an adverse employment action; and

3. The act is a proximate cause of the ultimate employment action.
Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 297, 419 U.S. App. D.C. 313 (D.C. Cir. 2015) (quoting Staub v. Proctor Hosp., 562 U.S. at 422)).
Examples of the Cat’s Paw Theory in Practice
Example 1: Employee A, a practicing Muslim, experiences religious discrimination by his supervisor.  His supervisor, who is opposed to Employee A’s religion, misuses the performance evaluation process to target Employee A.  Supervisor gives Employee A 2 poor performance rating reviews.  Supervisor knows that the Employer’s Employee Review Committee generally fires employees after 2 negative performance cycles.  After the second negative performance rating, the Employer’s Employee Review Committee is informed of the negative result, and without knowing anything about the discrimination behind the ratings terminates Employee A.
Example 2: Employee B, an African-American, is supervised by an individual who secretly discriminates on the basis of race. Employee B has had successful performance reviews and is well respected by the Employer.  Employee B has done so well that he is in line for a promotion which is to be decided upon by the Human Resources office.  Supervisor, however, in an attempt to sabotage Employee B’s career falsely claims to Human Resources that Employee B has a conduct problem.  Without knowing about the supervisor’s bias, the Human Resources office then gives the position to a different candidate as a result of the supervisor’s notification, but did not know about the discrimination when making their decision.
What Happens When the Bad Actor is a Co-Worker, Not a Supervisor
It is critical, at least right now, that the bad actor in a Cat’s Paw discrimination case be a supervisor or in management.  The Supreme Court has left open the question of whether or not an employer would be liable “if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.” Staub, 562 U.S. at 44, fn. 4. Some of the circuit courts have imposed a negligence-type standard in reviewing these cases.  
Two recent circuit cases are listed below:
Vasquez v. Empress Ambulance Serv., 835 F.3d 267 (2d Cir. 2016). An employee’s co-worker sent an inappropriate sexual photograph of himself while they were both at work. The employee complained about the photograph to her supervisors. The co-worker knew that a complaint had been made and then accused the employee of sexually harassing him.  Both employees were then fired. Ms. Vasquez filed suit and her case was dismissed because the harasser was not a supervisor, but instead was a co-worker.  The Second Circuit Court of Appeals found that the employer could be held liable for the conduct of the co-worker, finding “that an employee’s retaliatory intent may be imputed to an employer where, as alleged here, the employer’s own negligence gives effect to the employee’s retaliatory animus and causes the victim to suffer an adverse employment decision. As a result, we vacate the court’s decision and remand for further proceedings.” Id. at 267.  The primary result of the Vasquez case is that negligence is the key in cases involving co-workers.  An employer should definitely conduct an investigation in such a case prior to taking action. The Seventh Circuit held:
“In sum, we hold that an employer may be held liable for an employee’s animus under a “cat’s paw” theory, regardless of the employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action. Because Vasquez has plausibly alleged that Empress’s negligence permitted Gray’s retaliatory intent to achieve its desired effect — her termination — her claims for retaliation against Empress may proceed.”
Id. at 276.
Velazquez-Perez v. Developers Diversified Realty Corp., 753 F.3d 265, 274 (1st Cir. 2014). An employee rebuffs a co-worker’s romantic advances.  She then threatened to get him fired because he would not consent to these overtures.  The employee complained to management about the advances. She was rebuffed again and she complained about him to management.  The employee was fired. The District Court ruled against the employee, but the First Circuit reversed, finding that the employee could base a Cat’s Paw claim on the basis of the co-worker’s conduct.
Employer Defenses
Since Vasquez and Velazquez-Perez, employers have attempted to defend Cat’s Paw discrimination cases through the use of independent investigations.  In order to defeat the Cat’s Paw theory of discrimination (causation), an employer may attempt to hire an independent investigation to show that they are not guilty of negligence.  Many employers do not get this right, in terms of the type of investigation, the neutrality of the investigation and other factors in order to defeat a Cat’s Paw theory.
We represent employees in retaliation, discrimination and sexual harassment cases. If you need assistance in filing or evaluating a discrimination claim, please contact our office at (703) 668-0070 or at to schedule a consultation. Please also visit and like us on Facebook.

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