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CAT’S PAW – THE NEW CAT’S MEOW?
November 07, 2018
Parsons Behle & Latimer Legal Briefings


In 2011, the United States Supreme Court formally adopted a legal doctrine commonly known as the “Cat’s Paw” doctrine. The doctrine is named after an Aesop’s fable, describing a monkey who induces a cat to swipe roasting chestnuts from a fire. The cat burns its paw, and the monkey makes off with the chestnuts, leaving the cat with nothing. Applied to employment law, the doctrine aims to prevent innocent managerial decision makers from being manipulated by a lower-level employee to carry out illegal acts.

If a court finds that a non-decision maker’s unlawful discrimination or retaliation against a protected employee is linked with an adverse employment action, the employer will be held liable for the non-decision-making employee’s discriminatory or retaliatory animus, even though the ultimate decision-maker had no knowledge of the employee’s protected status or the subordinate’s illegal conduct.   

The Ninth Circuit (whose decisions apply to Idaho employers) has further developed the Cat’s Paw doctrine to require a plaintiff show, at a minimum, a non-decision maker set an adverse employment action in motion. If so, the plaintiff may be able to show that any alleged independent adverse decision made by the employer was influenced by the biased subordinate.

Cat’s Paw cases have not been limited to false incident reporting in the Ninth Circuit. The Court has also been presented with cases based on a subordinate employee concealing relevant information from a decision-maker, or skewing recommendations to higher supervisors, based on a discriminatory or retaliatory animus. 

A recent federal case from Idaho in which the Cat’s Paw doctrine played a part, was filed against Lemhi County. The case was filed by a former employee who was the first female to hold a position at its landfill. She filed several claims against the county, most related to allegations she had been continually harassed by co-employees because of her gender. During her employment, she was investigated by the county commissioners for falsifying time cards, which she claimed was based on false accusations by co-employees. The Commissioners eventually found that she had falsified the time cards and fired her. 

The county sought to dismiss her claims, arguing that she could not produce sufficient evidence to prove the discharge was due to gender discrimination, because she had been dismissed for performance issues, including falsifying her time cards. The plaintiff responded by arguing that any performance issues were fabricated by her co-workers to have her fired. The court applied the Cat’s Paw doctrine to find that a jury could reasonably find that the ultimate decision-maker took an adverse employment action in reliance on the information provided by the co-workers who displayed gender animus, and that the coworkers’ animus could be imputed to the county. Thus, the court allowed her to pursue her gender discrimination claims against the county. 

The Cat’s Paw doctrine is still relatively new in the legal landscape. Despite the Supreme Court’s adoption of the doctrine, many crucial issues remain undeveloped or are still being analyzed inconsistently between the circuits.

These developments require employers to take a much broader review prior to making adverse employment decisions. Until the doctrine becomes more concretely developed, employers can take some practical steps to reduce potential liability for discrimination or retaliation suits.

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