Ninth Circuit Rejects Cat's Paw Employment Discrimination Theory

Thanks to Ross Runkel and his Employment Law Memo for alerting me to the recent 9th Circuit case of Poland v. Chertoff, No. 05-35508 (9th Cir  July 20, 2007), in which the court joins the majority of circuits in rejecting the  4th Circuit's cat's paw approach to vicarious liability. The case concerned a disparate treatment ADEA case where the plaintiff had alleged constructive discharge and retaliation.

Ross has the details:

One issue on appeal was the rule to govern when a subordinate's bias will be imputed to an employer. The court rejected the "but for" test as insufficient in this context to impute the subordinate's bias to his employer. The court also rejected the employer's suggestion to follow the "cat's paw" approach of the 4th Circuit as too limited. The court held that if a subordinate, in response to an employee's protected activity, set in motion a proceeding by an independent decisionmaker that led to an adverse employment action, the subordinate's bias was imputed to the employer if the employee could prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process. The court stated this was consistent with the law in the majority of circuits.

Of course, the Supreme Court just recently granted cert. in such a case, only to dismiss it after agreement was reached by the parties. Could this be the next Supreme Court cat's paw case?

PS