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Cat’s Paw theory of liability does not apply to age discrimination claims


By Robert Crump

The cat’s paw theory of liability takes its name from La Fontaine’s fable, “The Monkey and the Cat.” As the story goes, the monkey persuades the cat to pull chestnuts from the embers of a fire. Of course, the cat burns its paw in the process. The monkey then gathers up all the chestnuts and runs away unharmed. The theory is usually applied where an employee seeks to hold an employer liable for the bad acts of a supervisor because the supervisor was merely a patsy and did not make the ultimate employment decision. However, the U.S. Court of Appeals for the Eleventh Circuit has recently decided that the theory is not applicable in age discrimination cases.

Who really made the decision to fire?
In this case, a fired employee claimed discrimination in violation of the Age Discrimination in Employment Act (ADEA) against his former employer. The employee was 71 years of age. The company argued that age played no factor and that the employee was lawfully terminated during routine downsizing. Allegedly, Budget constraints forced it to eliminate two positions.  According to the company, the decision to fire the employee was made by the project manager. However, the employee argued the decision to fire him was actually made by another higher-up, who was acting as the assistant project manager on this particular project, and who based the decision to fire the employee on the his age. Thus, the employee alleged the project manager that actually terminated him acted as the cat’s paw for the assistant project manager.

Ultimately, the Eleventh Circuit decided that the employee’s circumstantial evidence of discrimination was not enough to overcome the employer’s legitimate, non-discriminatory reason for firing the employee. Furthermore, and more to the point of the case, the court refused to apply the cat’s paw theory of liability on the employer. In declining to apply the cat’s paw theory, the court focused on the fact that under Title VII, plaintiffs are required to show that discrimination was a “motivating factor” in the firing or show that the discriminatory bias was the proximate cause of the firing. However, under the ADEA, a plaintiff is required to show that he or she suffered the adverse employment action “because of” his or her age. This is a more difficult link to prove than a mere “motivating factor” or proximate cause because it requires that the discrimination had a determinative influence on the firing. Ultimately, the court decided that the cat’s paw theory relating to proximate causation was not applicable in the same sense under the ADEA and that the employee failed to satisfy his burden of proof.

Advice for Employers
Even though the employer was victorious, this case highlights the importance for employers to be acutely of any possible discrimination claims. It is crucial for employers to train their employees on the law of discrimination, especially for those employees who are considered supervisors and who actually make hiring and firing decisions.

Read the case here.

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