Document Type
Article
Publication Date
2020
Abstract
In federal employment discrimination law, courts apply the label "cat's paw" to describe certain cases. Judge Richard Posner first used the term cat's paw in the context of federal discrimination jurisprudence, invoking a fable about an enterprising monkey who tricks a cat into getting hot chestnuts from a fire.' As the cat removes the hot chestnuts from the fire, the monkey eats them, leaving the cat with nothing except burnt paws.
In its traditional form, a cat's paw case is one in which a biased individual passes along negative information about a worker to an "unbiased" decisionmaker. The "unbiased" decisionmaker then takes a negative action against the worker based on the information provided. Although the cat's paw metaphor appears to be an easy way to describe a subset of discrimination cases, the term has grown beyond this descriptive function. There is now an entire body of employment discrimination law built around the cat's paw concept.
This Article explores cat's paw as a metaphor. It argues that courts should abolish the metaphor for three main reasons. First, cat's paw does not function well as a metaphor. Other than providing a clever turn of phrase, cat's paw does not perform any of the traditional functions of metaphor. The concept of cat's paw does not make an abstract principle more concrete. It does not provide fresh insights about discrimination law. It does not make law more accessible by allowing lay readers to better understand the law. Indeed, most people have never encountered the fable that underlies cat's paw. Second, cat's paw does not promote reasoning by analogy. It is unable to perform this function because the cat's paw fable does not describe what is happening in discrimination cases. The fable portrays two actors (a monkey and a cat) who have no legal relationship to one another and are not imbedded within a larger organization. The monkey is acting for his own personal gain and is not constrained or emboldened by the formal policies and informal norms of a larger organization.
Unfortunately, the fable does not even relate to the two most important actors in discrimination cases: the worker and the employer. They are simply not part of the idea that the fable conveys. Perhaps most striking, in the fable, the monkey gets away with his mischief. The overall tale told by the cat's paw fable is that a wrongdoer suffers no consequence for his actions. This does not seem like an appropriate idea to guide federal discrimination law.
Finally, employment discrimination as a field has suffered greatly by using cat's paw. Even though the pitfalls of judging by metaphor are well known, judges have not been careful in using cat's paw. In many cases, judges have inserted aspects of the cat's paw fable when describing the legal standard for proving employment discrimination. Rather than looking to the statutory language or purpose for meaning, the judges view the limits of liability through the fable instead. This happens even though the fable introduces concepts that are not required to adjudicate discrimination claims.
Recommended Citation
Sandra F. Sperino,
Killing the Cat's Paw, 50 Setons Hall Law Review 1303
(2020).
Available at: https://scholarship.law.missouri.edu/facpubs/1046