Employers shouldn’t always believe everything they hear from their direct subordinates, and if they do, they should be wary of the Cat’s Paw Theory of employer liability. Under the Cat’s Paw Theory of employer liability, an employer may be held liable if it renders an adverse employment decision based on the discriminatory animus of a supervisor even if the employer did not know of the underlying discriminatory intent. Staub v. Proctor Hosp. 562 U.S. 411, 422 (2011). Many times, employers hire supervisors because they believe that the supervisor will be impartial towards the rest of the staff. However, there often exists office politics, spurned romantic advances, differing political thoughts, and racial prejudices that are not readily apparent to unsuspecting employers. See Amanda Biondolino, The Cat’s Paw Theory Burns Another Employer, Smith Amundsen (Apr. 4, 2017) (https://laborandemploymentlawupdate.com). Thus, all employers, no matter how far removed they are from the actual “hands on” part of the business, should strongly consider investing in a human resources department or at the bare minimum conduct their own neutral, fact-finding efforts to avoid liability under the Cat’s Paw Theory.
California has adopted the holding in Staub in various employment law cases and jury instructions for the Cat’s Paw Theory generally read as follows:
In this case, the adverse decision maker (i.e., the “boss”) made the decision to render an adverse employment decision against the plaintiff. Even if the adverse decision maker did not hold any discriminatory intent or was unaware of the plaintiff’s conduct on which the claim of discrimination is based, the employer may still be liable for discrimination if the adverse decision maker followed a recommendation from or relied on facts provided by another person who had discriminatory intent. To succeed, the plaintiff must prove both of the following:
- That the plaintiff’s attributes were a substantial motivating reason for the supervisor’s acts on which the decision maker relied; and
- The supervisor’s acts were a substantial motivating reason for the adverse decision maker’s decision to render the adverse employment decision.
See Judicial Council of California, CACI No. 2511. Adverse Action Made by Decision Makers Without Animus (Cat’s Paw) (2022 ed.) (terms omitted).
Thus, the smarter and cheaper-in-the-long-run decision would be to hire a neutral human resources employee. This is especially true considering that several courts are consistently ruling that this theory could apply to any employee that was involved or reported findings during an investigative process. Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (holding that “if a subordinate, in response to a plaintiff’s protected activity, sets in motion a proceeding by an independent decision maker that leads to an adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decision-making process”.)
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