A supervisor doesn’t have to be the person who fires an employee to influence the decision. If a supervisor’s actions are motivated by discrimination, their actions can raise a different question: Did their bias play a role in what happened next? The cat’s paw theory of discrimination deals with that question. The details of how influence occurred can matter when determining whether an employment discrimination claim has merit.

Key Takeaways

• The cat’s paw theory is a legal doctrine that holds employers liable when a biased employee influences an adverse employment decision made by someone else.
• An employee must prove the connection between the discriminatory actor and the adverse action.
• An employer’s independent investigation may weaken an employee’s argument.
• The cat’s paw theory can also apply when an employee alleges retaliation for protected activity.

What Is the Cat’s Paw Theory of Discrimination?

Fables endure because their stories may be simple, but the truths they reveal about human nature are anything but. There is usually a lesson hiding in a good fable, even when the story is told through animals, exaggeration, or imagination. That is the case with the origin of the cat’s paw theory. One of Aesop’s fables tells the story of a monkey who desperately wants the chestnuts that are roasting in the fire. However, he knows that if he reaches for them, the fire will burn him. So instead, he convinces an unwitting cat to reach in and retrieve the chestnuts for him. The monkey trick results in the cat having nothing but burned paws and the monkey eating all of the chestnuts.

What do monkeys and cats have to do with employment law? The lesson is that an employer can be metaphorically burned by the actions of an employee who has discriminatory motives. An employer could be liable for discrimination if the employee’s actions were motivated by discriminatory intent, and the employer was aware of or should have been aware of the discriminatory motive. This can occur even if the employee did not have decision-making authority and was not the ultimate decision-maker in the employment action.

How Does Cat’s Paw Discrimination Happen?

Every situation is different, but an example of how cat’s paw theory works can help you understand this legal doctrine. Let’s assume there is a supervisor who has managerial oversight of an employee. However, the supervisor doesn’t have the authority to fire the employee. The supervisor gives the company decision-maker misleading or false information about the employee's performance. The decision maker then relies on the supervisor’s information and ultimately terminates the employee. The employee argues that the supervisor's discriminatory bias caused the termination. The decision maker could honestly believe the termination is based on poor performance.

What Does an Employee Have to Prove?

To have a successful claim, the employee needs to show the connection between the biased employee’s conduct and the ultimate employment decision. To satisfy the cat’s paw theory doctrine, a plaintiff generally needs to prove:

• A biased employee was involved.
• The biased employee influenced the decision.
• The bias was causally connected to the adverse action.

This is in addition to the required elements of the underlying discrimination or retaliation claim.

What Evidence Can Support a Cat’s Paw Claim?

Cat’s paw claims are generally won or lost on what happened before an employer made any decisions. Communications, performance reviews, disciplinary records, and termination recommendations may show how a supervisor or other employee influenced the process. Emails or text messages can be particularly useful. They often reveal what information or opinions were shared with the decisionmaker.

An employee may have a stronger argument if the decisionmaker:

• Relied on false or misleading information supplied by the biased employee
• Failed to verify it, or
• Gave an explanation for the adverse action that doesn’t match earlier explanations

Evidence that makes these connections can help establish how the employee’s bias impacted the final decision. But there is another side to the analysis. If the employer independently investigated the circumstances and had sufficient unbiased grounds for its decision, that may weaken the employee's argument that the other person's discriminatory bias caused the outcome. In Collins v. City of Mason, the court found that the evidence did not establish the causal connection required for a cat’s paw theory.

What Happens When the Employer Conducts an Independent Investigation?

An employer may argue that the ultimate decision maker independently investigated the situation. They reached their conclusion without relying on the employee’s alleged biased actions. If it can provide convincing evidence, the employer may successfully break the causal connection.

Does the Cat’s Paw Theory Apply to Retaliation?

The cat’s paw theory is not limited to discrimination claims based on a protected characteristic. It can also apply when an employee alleges retaliation for engaging in legally protected activity. Ohio courts have considered this type of theory in retaliation cases. As with a discrimination claim, the employee must establish the required elements of the underlying retaliation claim and show the necessary causal connection between the biased or retaliatory employee's actions and the adverse employment action.

What Should an Employee Do If They Suspect Cat’s Paw Discrimination?

If you suspect that you’ve experienced discrimination in the workplace, the first step is to preserve any relevant employment records and communications. Retain copies of performance reviews, disciplinary notices, emails, text messages, and other documents they are permitted to retain. Create your own records by documenting relevant events and statements made while they are still fresh in your mind. Keep your records factual by avoiding making assumptions about others’ motivations.

A claim based on the cat’s paw theory is fact-specific. A plaintiff must prove what the allegedly biased employee did and how that conduct affected the ultimate decision. An Ohio employment attorney can discuss your situation, evaluate the facts of your case, and determine what discrimination laws may apply.

Speak With an Ohio Employment Lawyer

The person who makes the final employment decision is not always the only person who matters. If a supervisor or manager's discriminatory bias influenced that decision, the cat’s paw theory of discrimination may give an employee a way to challenge the resulting employment action. Proving that connection requires more than showing that someone involved in the process was biased. The evidence must show how that person's actions affected the decision.

If you believe discrimination played a role in your termination, discipline, or another workplace decision, Lalak LLC can review the circumstances and help you understand your legal options. Schedule a consultation to discuss your situation with an Ohio employment law attorney.