The Cat, The Monkey, And The Liable Employer

September 30, 2014

A monkey convinces a cat to reach into a fire to extract some roasting chestnuts.  The cat burns its paws and loses all of the chestnuts to the monkey.  The monkey escapes unharmed, free to perform the same con all over again.  The term “cat’s paw” seems out of place in the middle of a courtroom.  But the implications behind the term can have a huge impact on the liability of an employer.

The term stems from our own 7th Circuit Court of Appeals and Judge Richard Posner.  In Shager v. Upjohn, Judge Posner told the “Cat’s Paw” fable to illustrate the scenario when an unbiased decision maker is influenced by a biased non-decision maker into making a discriminatory employment decision.  In the story, the monkey is the supervisor, convincing the cat, which is the decision maker, to make a discriminatory decision.  Normally the decision maker would be the one liable, but the cat’s paw theory allows the plaintiff to pursue the employer despite not actually making the decision.


Over time this theory was constrained and weakened until the standard required the biased supervisor to exert a “singular influence” over the decision maker.  However, United States Supreme Court recently expanded the Cat’s paw theory, resulting in an explosion of new applications and a broader spectrum of employer liability.  In Staub v. Proctor Hospital, the plaintiff was a radiologist and member of the Army reserve.  He filed suit alleging his supervisors filed a false disciplinary report against him for violating a hospital policy.  The plaintiff alleged that the supervisors harbored anti-military sentiments against his obligations and consequent absences.  While his supervisors did not have the authority to fire Staub, they did make derogatory comments about him to the Vice President of Human Resources.  The VP fired Staub based on personnel records, co-worker interviews, and the disciplinary reports from the supervisors.

Under Judge Posner, the 7th Circuit found that there was not a ”singular influence” by the supervisors.  However the Supreme Court found that such a test is too limiting.  They stated that such a test would allow employers to immunize themselves by creating a separate personnel office with the power to terminate employment and asking them to review the employee’s personnel file, which is composed of biased recommendations from the supervisors.  Instead the Court articulated three elements to a successful “cat’s paw” claim.  First, the employer’s agents must perform a specific act due to animus (e.g. writing biased disciplinary reports).  Second, the agents must intend that the act “cause an adverse employment action (e.g. firing, demotion, suspension).  Third, the act was a proximate cause of the adverse employment action.  Effectively the Supreme Court broadened the scope with the term “proximate cause.”


While the case was limited to military discrimination, the test has already been applied to Title VII employment discrimination and beyond.  The test itself favors plaintiffs by requiring the plaintiff to only show that the acts of the supervisors were a proximate cause and not the proximate cause of the adverse employment action.  Furthermore, the Court also touched on the role of co-workers and non-supervisors in influencing the decision maker.  They recognized the possibility and left the door open for claims to be brought through non-supervisors.  A supervisor with a bone to pick can now make the whole company liable for his biased reports.  With such a pro-plaintiff concept in Illinois, and federal courts in general, a separation of offices may not be enough to prevent employer liability.  Employers will have to keep a more watchful eye on supervisors to ensure that any biases are not creeping into the personnel departments.