Judicial Notebook

In the fable The Monkey and the Cat by 17th-century poet Jean de La Fontaine, a wily monkey convinces an unwitting cat to pull chestnuts from a hot fire. As the cat scoops the chestnuts from the fire one by one, burning his paw as he does so, the monkey eagerly gobbles them up, leaving none for the cat. Today, the term “cat’s paw” refers to someone who is used by another to accomplish the other person’s purposes.

In recent years, the cat’s paw theory of discrimination has been raised in the context of employment law as a means of holding employers liable for the discriminatory animus of a supervisor who was not directly responsible for making an adverse employment decision. When a supervisor fires an employee for discriminatory reasons, the firing is unlawful and the employee has a cause of action based on the supervisor’s improper motives. The question raised in cat’s paw cases, however, is different. In these cases, the employee with discriminatory animus (the monkey) does not make the ultimate firing decision, but instead influences another person (the cat) who ultimately decides to fire the employee.

A case in point

In March, the U.S. Supreme Court decided Staub v. Proctor Hospital (131 S.Ct. 1186), considering the cat’s paw theory in the context of the Uniformed Services Employment and Reemployment Rights Act, which prohibits discimination in employment against members of the uniformed services. The plaintiff in Staub was a radiology technician at Proctor Hospital and also a member of the U.S. Army Reserves. Part of Staub’s service with the Army required him to attend periodic training sessions that caused him to miss work. Staub alleged that his immediate supervisor had openly denigrated his military duties, placed him on weekend work rotations that conflicted with his scheduled drill and training obligations, and had asked a co-worker to help her “get rid of him.” Yet Staub’s supervisor was not the one who fired him. Instead, Proctor Hospital’s vice president of human resources — who was not alleged to have harbored any hostility toward military service — made the decision to fire him. Under the cat’s paw theory, however, Staub alleged that discrimination was a motivating factor underlying the firing because the biased supervisor had influenced the human resources executive’s decision to fire him.

A jury found that Staub’s “military status was a motivating factor in [Proctor’s] decision to discharge him” and awarded Staub over $50,000 in damages. The Seventh Circuit Court of Appeals overturned the jury verdict, however, because the decision to terminate Staub was made by an individual unconnected to the alleged anti-military bias and the employee with discriminatory animus had not exercised “singular influence” over the decision. Resolving a split among the federal judicial circuits, the Supreme Court reversed the Seventh Circuit and upheld the validity of the “cat’s paw” theory, holding that “if a supervisor performs an act motivated by...animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.”

Research questions

This case raises a host of interesting questions for psychologists. In particular, it highlights the complexities of how discrimination operates in social context. The psychology of discrimination is complex, particularly so in circumstances implicated by the cat’s paw theory, which contemplates an environment in which social actors interact, influence each other and make decisions in light of an array of information, some of which may be discriminatory. Psychological research can shed light on the ways in which employees express discriminatory animus in ways that are not embodied in formal employment decisions; how to evaluate the intentions of such employees; how such expressions influence decision-makers; and how ultimate decision-makers evaluate information and investigate allegations of discimination. Further exploration of these topics will enrich our psychological models of discrimination and enhance the ways in which the law addresses discrimination.

“Judicial Notebook” is a project of APA’s Div. 9 (Society for the Psychological Study of Social Issues).