Quirky Question #287: “Cat’s Paw” Claims – How could an employer violate antidiscrimination laws, even though the decision-making manager has no discriminatory bias at all?
Question: We just went through a five-person layoff, and one of the individuals laid off (an African American) has hired a lawyer and is threatening to sue for racial discrimination. I have enormous confidence in the fairness of the individual manager making the layoff selections, and those selections were based on years of performance ratings. However, the lawyer hired by our ex-employee says that doesn’t matter, because the ex-employee’s direct supervisor was racially biased. He says that the bias of the direct supervisor taints the entire process and that the manager was merely a “cat’s paw.” Let’s assume for a moment that the direct supervisor is a little rough around the edges. Do we have a problem here, even though the manager is fair and unbiased? And what the heck is a “cat’s paw” anyway?
Answer: by David Y. Trevor
To answer your second question first, a “cat’s paw” is a person used by another as a dupe or tool. The phrase derives from an ancient fable in which a clever and unscrupulous monkey convinces a cat to remove roasted chestnuts from a hot fire. The monkey makes off with the chestnuts, leaving the cat with nothing but burnt paws. How exactly this became a metaphor in employment discrimination law is beyond the scope of this article, but a “cat’s paw” case is one in which an unbiased manager is used as a tool by a biased supervisor or manager to implement an employment decision based on the discrimination and animus of the unscrupulous supervisor or manager.
In a true cat’s paw case, the biased supervisor provides the basis for getting rid of an employee, for example through an unfairly negative performance evaluation, while the actual decision is implemented by an unbiased manager who simply accepts the biased information uncritically.
To address this situation, courts apply a more employee-friendly analysis in cat’s paw cases. Specifically, courts utilize the “mixed motives” analysis of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which is generally less rigorous than the classic McDonnell Douglas framework and may permit a somewhat weaker case to survive summary judgment and proceed to trial. The purpose of the cat’s paw rule, as the United States Court of Appeals for the Eighth Circuit has stated, is to provide that “an employer cannot shield itself from liability for unlawful termination by using a purportedly independent person or committee as the decision maker where the decision maker merely serves as the conduit, vehicle, or rubber stamp by which another achieves his or her unlawful design.” Richardson v. Sugg, 446 F.3d 1046, 1060 (8th Cir. 2006) (emphasis added).
What does that mean in the situation you describe? It will ultimately depend on the details, but the Eighth Circuit recently emphasized the limitations on the cat’s paw doctrine in affirming summary judgment for the employer. In Cherry v. Siemens Healthcare Diagnostics, Inc., the Eighth Circuit affirmed summary judgment dismissing the race discrimination claims brought by Cherry, who was selected for a layoff. Cherry, who was African American, had worked for Siemens for 30 years, until he was selected for layoff in 2011. During his last few years at Siemens, he experienced treatment from a supervisor named Raymer and a coworker that were derogatory, disrespectful and may have been based on racial bias. As Cherry’s supervisor, Raymer had performed employment evaluations on Cherry in 2009, 2010 and 2011, which were used to help identify which employees would be laid off. Cherry was one of the lowest ranked employees and was selected for layoff by a manager named Siebert. There was no evidence that Siebert had ever mistreated Cherry or had any bias against him.
The district court granted summary judgment dismissing Cherry’s claims. Under the familiar McDonnell Douglas analysis, the court found that Siemens had offered a legitimate, non-discriminatory reason for its layoff selection (Cherry’s poor performance evaluations) and that Cherry had failed to offer evidence showing that that reason was a pretext for unlawful discrimination.
On appeal, Cherry strenuously argued the “cat’s paw” theory. Because there was evidence that Raymer was biased against him based on his race, Cherry argued that Raymer’s evaluations were tainted by discrimination and could not lawfully be used in the layoff process.
However, the Eighth Circuit rejected this argument, because the cat’s paw theory requires that the biased supervisor actually use the non-biased manager as a dupe or tool. Raymer did not know about the layoff plans when he conducted the performance evaluations. Therefore, the court reasoned, Raymer could not have been using Siebert as a dupe or tool to achieve Cherry’s termination. The layoff was evaluated based on Siebert’s motives, and those were not discriminatory.
Cherry also failed to support his case under the McDonnell Douglas analysis. The Court said that “there is no evidence in the record to support a finding of pretext as to Siebert, who was the actual decision maker.” The Cherry case provides a striking example of how an employer can prevail, on summary judgment, even when the underlying information used to make layoff decisions is potentially tainted by racial or other bias. The case illustrates the following points:
- The employer should be clear on who the actual decision maker or decision makers are in a layoff or other termination situation. You want to know which individuals are going to have their motives analyzed;
- Make certain those individuals are people you have confidence in. Siemens prevailed in the Cherry case because Siebert was seen as a fair and unbiased decision maker;
- Where appropriate, utilize data in making layoff decisions that has been generated for general purposes, such as prior employment evaluations. If Raymer had been providing input, knowing it was being used to decide who would be laid off, the outcome of the case may well have been different.