The United States Supreme Court may decide to review Staub v. Proctor Hospital, a case from the Seventh Circuit which raises issues regarding the colorfully named “cat’s paw” theory.  The basic theory is one related to imputed intent or, as stated in Staub’s request for review, “In what circumstances may an employer be held liable based on the unlawful intent of [subordinate] officials who caused or influenced but did not make the ultimate employment decision?” In California, there are a handful of decisions applying the cat’s paw rationale. E.g., DeJung v. Superior Court, 169 Cal. App. 4th 533, 540 (2008). However, the existing case law provides little guidance on the contours of the doctrine. For example, what type of “unlawful intent” matters? If the subordinate has demonstrated age bias, but the alleged adverse action involves bias based on race, should the Court nonetheless find the whole process flawed? My view, as expressed in a recent brief filed with the California Court of Appeals, is here.

In case you were wondering: The “cat’s paw” doctrine derives its name from a fable, made famous by La Fontaine, in which a 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 in the process, the monkey eagerly gobbles them up, leaving none left for the cat. Today the term “cat’s-paw” refers to “one used by another to accomplish his purposes.  EEOC v. BCI, 450 F.3d 476, 484  (10th Cir. 2006).