Federal employment discrimination law is enamored with court-created doctrines with catchy names. A fairly recent addition to the canon is the concept of the "cat's paw," formally recognized by the U.S. Supreme Court in Staub v. Proctor Hospital. With its name coined by Judge Richard Posner and drawn from a fable, the concept of cat's paw has taken ground quickly, discussed in hundreds of cases. The Supreme Court recognized the cat's paw theory in a case where a hospital fired a worker. The person who made the ultimate decision did not have impermissible bias. However, her decision was influenced by information from two supervisors who arguably did possess such bias. The Court held that "if a supervisor performs an act motivated by [impermissible] 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." Since then, courts have applied cat's paw analysis under a wide range of federal statutes including Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and others. This Article argues that the cat's paw doctrine is a mistake, and the courts should abolish it.
This Article proceeds as follows. Part I discusses the Staub case in-depth, covering its journey from the trial court to the Supreme Court. Part II discusses several Supreme Court cases decided both prior to and after Staub that fall within the ambit of what would now be called cat's paw. It demonstrates that the Supreme Court did not need a special cat's paw doctrine to resolve these cases. Part III explores the Seventh Circuit decision in Shager v. Upjohn Co., showing that even that court did not rely on cat's paw doctrine. Part IV contrasts the Supreme Court cases and Shager with Staub, showing that it will be difficult to reconcile a restrictive cat's paw doctrine with them. Part V highlights the problems federal courts are experiencing with cat's paw and charts a path forward based on the text and purposes of the federal discrimination statutes.
Sandra F. Sperino,
Caught by the Cat's Paw, 2019 Brigham Young University Law Review 1219
Available at: https://scholarship.law.missouri.edu/facpubs/1051