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Subordinate Bias Liability: The 'Cat's Paw' Doctrine
Everyone knows that a manager who expresses discriminatory views and then fires or disciplines an employee belonging to the disfavored group may create a claim against the employer. But what happens when an unbiased manager relies on the recommendation of another supervisor who, unbeknownst to the decision maker, is a raging bigot?
Many courts have recognized claims under Title VII for subordinate bias based on 'cat's paw' or 'rubber stamp' theories of liability. The 'cat's paw' doctrine refers to the situation in which a biased subordinate, who does not have the ability to make a hiring or firing decision, is able to use the actual decision maker to trigger a negative employment action. Under the 'rubber stamp' theory, the formal decision maker mechanically consents to the discriminatory employment action at the behest of the biased subordinate. See Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998); Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 288 (4th Cir. 2004) (en banc).
Most circuits have accepted some version of this doctrine and the Supreme Court has cited with approval the case that coined the 'cat's paw' term for this type of employment decision. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758 (1998) (citing Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (Posner, J.)). In Shager, the company had an unbiased committee in place to make employment decisions, but that level of formality was not enough to shield the company from liability as the Seventh Circuit found that the committee functioned as the biased supervisor's 'cat's-paw.'
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