Liability for Cat's Paw Discrimination

Readers might recall Paul's post in April about the Supreme Court's granting cert, then subsequently dismissing, a cat's paw case.  Tim Davis, at attorney at The Lawrence Firm (and Chase graduate), just posted on SSRN what I believe is the first law review article on cat's paw liability: Beyond the Cat's Paw: An Argument for a Substantially Influences Standard for Title VII and ADEA Liability.  The article is forthcoming in Pierce Law Review.  Here's the abstract:

“Cat's paw” discrimination occurs when a supervisor with discriminatory animus reports falsely to a personnel committee that an employee is performing poorly, inducing the committee to fire the employee. The Fourth Circuit has held that the fired employee has no cause of action for discrimination; the errant committee, the Fourth Circuit reasons, fired the employee because of the misinformation supplied by the supervisor and not because of the committee's discriminatory animus. The Seventh Circuit, relying on agency principles, has rejected this approach. Analogizing the situation to an Aseop's Fable in which a monkey induced a cat to commit a crime for him, the Seventh Circuit has held that “cat's paw” discrimination should not shield an employer from liability.

This article agrees with the Seventh Circuit's conclusion that the employer should be held liable. Unfortunately, however, the Seventh Circuit's mis-application of agency principles may result in “cat's paw” liability not attaching when the person reporting to a personnel committee is not a supervisor, but is instead a co-worker or a non-employee such as an independent contractor or a customer. This article urges courts to adopt a “substantial influence” standard by which an employer would be liable whenever a biased report to a personnel committee or other ultimate decisionmaker has a substantial influence on a decision to take an adverse employment action against an employee.

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