December 1, 2008

Cat’s paw liability is so named because of Aesop’s fable “The Monkey and the Cat,” in which a monkey tricks a cat into scooping roasting chestnuts out of a fire with its paws so the monkey can eat them all without leaving any for the cat.  Unfortunately for the decision-making supervisor, the cat’s role was his to play.

Madden provided evidence that at least two times in the past the same supervisor who reported his misconduct and recommended his termination saw white employees set fireworks off in a similar, if not more dangerous, manner.  None of those employees was disciplined or fired for their actions.

Because the reporting supervisor was shown to have selectively reported the use of fireworks by a black employee to senior managers while not reporting white employees for similar conduct, he was found to have discriminatory animus in his actions toward Madden.  Thus, by not conducting an additional investigation into the matter, the decision-making supervisor acted as the reporting supervisor’s “cat’s paw” by being a conduit of his discrimination.  Therefore, the discriminatory animus was imputed to the decision-making supervisor.

Supervisors with ultimate decision-making authority must take care to investigate events thoroughly before taking disciplinary actions, especially when they do not have first-hand knowledge of those events.  If you have questions about conducting such investigations, or about the danger of cat’s paw liability, please contact your FBT L&E attorney.