Protecting Your Business from the Cat’s Paw Theory in Employment Litigation

In employment law, the Cat’s Paw theory refers to a situation where an employee suffers an adverse action—not because of the direct intentions of a supervisor, but due to manipulation by a subordinate with discriminatory or retaliatory motives. In such cases, the supervisor acts as an unwitting tool for someone with a hidden motive, and the employer may be held liable for the resulting harm.

Understanding how this theory works is crucial for employers, as it helps them minimize the risk of costly legal disputes and employee grievances. Here’s what you need to know about the Cat’s Paw theory and how to protect your business from liability.

What Is the Cat’s Paw Theory?

The term “cat’s paw” comes from a classic fable in which a monkey tricks a cat into reaching into a fire to pull out chestnuts, causing the cat to get burned while the monkey enjoys the reward. In the workplace, the “cat’s paw” theory describes a situation where a supervisor or decision-maker is unknowingly manipulated by a subordinate or coworker with a discriminatory or retaliatory motive. As a result, the supervisor may take an adverse employment action—such as firing, demoting, or disciplining an employee—based on that bias.

The U.S. Supreme Court’s 2011 decision in Staub v. Proctor Hospital established that the Cat’s Paw theory can apply in cases where the employee’s adverse action was the result of a biased influence, even if the decision-maker did not have discriminatory intent themselves. If the biased subordinate employee’s influence played a significant role in the decision, the employer could be held liable for the harm caused.

How Employers Can Minimize the Risk of a Cat’s Paw Claim

Employers can take proactive steps to avoid becoming the target of a Cat’s Paw claim. By adhering to policies and conducting thorough investigations, businesses can reduce their risk of liability and ensure that employment decisions are based on legitimate, non-discriminatory factors.

Some key practices include:

1. Train Employees and Supervisors on Policies

Ensuring that all employees and supervisors are well-versed in anti-discrimination, anti-harassment, and anti-retaliation policies is a crucial first step. Training should cover how to recognize and report inappropriate behavior, as well as how to make fair and unbiased decisions when it comes to discipline and employment actions.

2. Create Clear Reporting Structures

Establish simple, accessible procedures for employees to report issues internally. It’s equally important to maintain a record of all complaints and monitor trends to identify potential risks early.

3. Document Legitimate Business Reasons for Employment Actions

When making employment decisions such as suspending, demoting, or terminating an employee, it’s essential to document the legitimate business reasons behind those actions. Clear documentation helps defend against claims of bias and ensures that decisions are based on objective criteria.

4. Offer Opportunities for Feedback

Providing employees with an opportunity to voice concerns about employment decisions through grievance or open-door policies can help reduce the chances of claims based on perceived unfairness. This process gives employees a platform to address their concerns before they escalate to legal action.

5. Apply Discipline Consistently

To avoid the perception of favoritism or bias, ensure that similar infractions are met with similar corrective actions. While factors like job duties, performance, and disciplinary history may warrant different responses, discipline should be applied fairly and consistently.

The Importance of an Impartial Investigation

When an employee files a complaint or when there’s suspicion of discriminatory or retaliatory behavior, a prompt, impartial, and thorough investigation is crucial. An independent investigation helps separate any biased motivations from the final employment decision, protecting the employer from a potential Cat’s Paw claim.

An impartial workplace investigation should include the following:

• Interview All Sides– Interview both the employee making the complaint and the accused party. Allow each to present their side and any supporting evidence. Interview any witnesses.
• Collect and Review All Relevant Documents– Gather any pertinent documentation, such as communications, audio or video recordings, etc. that may provide context or explain the situation.
• Consider Contradictory Evidence– Don’t just accept one side of the story. Actively look for evidence that might contradict the allegations or clarify the situation.
• Verify Facts Independently– Verify information from an additional source whenever possible to ensure no personal bias or retaliatory motive is influencing the investigation.
• Be Patient and Thorough– Avoid making rushed decisions. An investigation requires time and effort to ensure a fair outcome for all parties involved.
• Consider Interim Actions– If necessary, temporarily separate the employees involved during the investigation to prevent further issues or retaliation while the facts are being reviewed. Do not demote an employee or deprive an employee of pay as an interim action.

Employers can be held liable for discriminatory or retaliatory actions, even if the decision-maker had no ill intent. By implementing clear policies, providing regular training, documenting decisions thoroughly, and conducting impartial investigations, employers can minimize the risk of a Cat’s Paw claim, foster a fair and compliant workplace, and avoid costly legal disputes.