BY: KHALID IBDAH, Senior Staffer

Discrimination is a persistent evil in society. Deep-rooted and omnipresent discrimination requires proactive and continued efforts to counter it. Almost nowhere is it harder to prove than in employment litigation. Creating opportunities, generating income, and subsisting are dependent on a non-discriminatory workplace. With this consideration, Congress enacted Title VII of the Civil Rights Act of 1964, granting remedy to those impacted by injurious employment actions made on the basis of a protected class. Employers who discriminate are liable, but what happens when an unbiased employer is influenced by a biased subordinate?

Subordinate Bias Liability, or “Cat’s Paw” liability, grants relief to employees facing adverse employment actions influenced by a biased subordinate who lacks the power to make the decision themselves. The name originates from a 17^th-Century fable The Monkey and the Cat, where a monkey swindles a cat into swiping chestnuts from a fire, burning its paw in the process, before taking them for itself. A lower-level employee (“Monkey”) unduly influences employment decisions by manipulating a higher-level employer (“Cat”) for discriminatory purposes. Under Cat’s Paw jurisprudence, that discriminatory intent taints the employer’s action, creating actionable harm in court under Respondeat Superior. ¹

First recognized by the Supreme Court in Staub v. Proctor Hospital, ² an employee must prove two elements to succeed on a Cat’s Paw claim: (1) the supervisor intended to cause an adverse employment action, and (2) their discriminatory animus was a proximate cause of that action³. Circuits differ on how involved a supervisor must be in a decision. ⁴ The majority apply a lenient standard, holding employers vicariously liable if a biased subordinate influenced the decision. Another approach requires a causal link between the bias and the action, while the Fourth Circuit’s stricter standard holds the employer liable only if they harbor discriminatory intent. ⁵ Given the subtle and often unconscious nature of bias in decisions, the majority’s lenient approach best supports Title VII’s goals.

Discriminatory animus is particularly difficult to prove within the employment context, where employers won’t admit it, nor leave a paper trail, instead giving alternate explanations. ⁶ Jurisprudence which requires a showing of intent overlooks this untraceable bias. The modern workplace is more complex, and discrimination has shifted from overt exclusion to subtler forms. Employers no longer openly reject people of color or women, but their biases often affect how they perceive and evaluate employees. ⁷ This bias exists in workers at every level. Proving that a supervisor maligned their reports to reflect poorly on an employee is difficult without any tangible trace of a discriminatory motive. A plaintiff-employee can subpoena records of the decision-making process. The mental processes behind them? Less so.

Thus, the purpose of Title VII, acknowledging that people often remain silent about discrimination that they have encountered or observed, remains unserved. It is increasingly true that employees who have been disparately treated based on their identity or class are unable to prove that their employer, let alone their supervisors, harbored discriminatory motivations. Employment discrimination cases reflect far fewer plaintiff-employee victories than other civil litigation cases. In 2023, the Equal Employment Opportunity Commission received 81,055 charges of discrimination, resolving only 18% of them favorably to the charging party. In court, it is difficult to prove that someone intended to discriminate without tangible proof of that intention. It is harder to prove that the discriminatory animus substantially impacted the formal employment decision, when even the employers themselves may be unaware. Employees struggle against employers with more resources and alternative explanations.

The lenient standard properly addresses these issues by holding employers liable when a supervisor has any influence over the decision-making process. ⁸It recognizes that subordinates can impact employment decisions in ways that are hard to measure, requiring only that discrimination was a motivating factor. ⁹This approach acknowledges the complexity of modern workplaces, where employers rely on various sources like performance reports, audits, and word-of-mouth accounts. If discriminatory influence affects the outcome, an injustice has occurred, and courts should provide a remedy. If the purpose is to prevent discrimination, Title VII, and therefore Cat’s Paw liability, must extend to all places where discrimination proliferates employment decisions.

The recognition of Cat’s Paw liability has increased employee’s chances of obtaining justice when they face discrimination, but there is still more work to be done. Courts unduly restrict the ways discriminatory animus can manifest for a plaintiff-employee to succeed, often relying on outdated conceptualizations of what discriminatory workplaces look like. For example, a showing of intent to discriminate is necessary for almost all employment discrimination lawsuits. Many discriminatory employment actions, however, are taken without any discriminatory intent whatsoever. Stereotypes, cognitive bias, and other unconscious influences cause a discriminatory outcome. Lina Hamilton Krieger argues that an approach that adequately addresses modern-day discrimination would ask whether an employee’s group status “made a difference” in the employer’s action, not whether the decisionmaker intended that it make a difference. ¹⁰ Outdated notions of how discrimination manifests in the workforce (that it is intentional and apparent) leave today’s injured employees unable to sufficiently articulate how they were discriminated against when they are seeking redress. Today, the courts must expand Cat’s Paw’s liability to include employees subordinate to supervisors and address how animus has changed in representation to best protect employees who have been discriminated against.

Changing Cat’s Paw liability to better reflect today’s working world concerns more than just protecting employees of a protected class. It is well documented that policies implemented to protect and uplift the most vulnerable in society benefit everyone. The Curb-Cut Effect refers to how a change meant to help one group of people—like adding curb cuts for those with disabilities at Berkley—can end up benefiting many others too, such as parents with strollers, workers with carts, travelers with luggage, and even joggers. Similarly, providing public transportation for low-income areas of cities increases the city’s total earnings. It allows those without means to access jobs, marketplaces, and public life in the city center. Rutgers University found that when metro areas added four seats for every 1,000 residents, the number of employes working in the central city increased by 20 percent. ¹¹ Ignoring how discriminatory motives have evolved only helps perpetuate them. In The Monkey and the Cat, the lesson is that some will always exploit their influence for personal gain. In the workplace, this could be a supervisor or co-worker manipulating decisions. The cat’s out of the bag: courts must address modern discrimination, or both employees and society will suffer while wrongdoers face no consequences.

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1. Devin Muntz, Extending the Cat’s Paw Too Far into the Fire: Rejecting the Second Circuit’s Extension of the Cat’s Paw Theory of Liability to Co-worker Discriminatory and Retaliatory Animus, 2017 U. Chi. Legal F. 709, 715 (2018) (“Posner’s use of the metaphor was largely in relation to the integration of respondeat superior into the employment context, positing that ‘if [the defendant-company] acted as the conduit of [an employee’s] prejudice—his cat’s-paw­—the innocence of its members would not spare the company from liability.’”). ↩︎
2. 562 U.S. 411 (2011). ↩︎
3. Keaton Wong, Weighing Influence: Employment Discrimination and the Theory of Subordinate Bias Liability, 57 Am. U. L. Rev. 1729, 1731 (2008). ↩︎
4. Id. at 1732. ↩︎
5. Id. at 1732–34. ↩︎
6. Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir. 1987). ↩︎
7. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1214 (1995) (“Far from supporting the assumption of decisionmaker self-awareness . . . .”). ↩︎
8. Wong, supra note 2, at 1743. ↩︎
9. Id. ↩︎
10. Krieger, supra note 6, at 1242. ↩︎
11. Angela Glover Blackwell, The Curb-Cut Effect, Stan. Soc. Innovation Rev. 28, 32 (2016). ↩︎