In Staub v. Proctor Hospital, the United States Supreme Court accepted the “cat’s paw” theory of establishing liability in an employment case. In doing so, the Court endorsed a view which had long prevailed among the Circuit Courts of Appeal. See, e.g., Arendale v. City of Memphis, 519 F.3d 587, 604 n.13 (6th Cir. 2008) (“When an adverse [employment] decision is made by a supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who was motivated by such bias, this Court has held that the employer may be held liable under a ‘rubber-stamp’ or ‘cat’s paw’ theory of liability.”); EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th Cir. 2006) (noting that the “cat’s paw” and “rubber stamp” theories of subordinate liability have been “overwhelmingly” endorsed, including by the 3rd, 6th, 7th, 8th, 9th, 11th, and D.C. Circuits); Roberts v. Principi, 283 F. App’x 325, 333 (6th Cir. 2008) (defining “cat’s paw” theory where (1) biased subordinate, not nominal decisionmaker, is driving force behind adverse employment action, (2) decisionmaker does not independently evaluate the employee, and (3) biased subordinate “clearly causes” the adverse employment action); Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998) (“In effect, the [biased actor] is the decisionmaker, and the titular `decisionmaker’ is a mere conduit for the [biased actor’s] discriminatory animus.”); Cobbins v. Tennessee Dept. of Transp., 566 F.3d 582, 587 n.5 (6th Cir. 2009) (“In the employment discrimination context, what is known as the ‘cat’s paw’ theory refers to a situation in which a biased subordinate, who lacks decisionmaking power, influences the unbiased decisionmaker to make an adverse [employment] decision, thereby hiding the subordinate’s discriminatory intent.”). Courts have found that imposing liability on the employer in this context is in accord with the agency principles and policies underlying Title VII. See, e.g., Roberts v. Principi, 283 F. App’x at 333; BCI Coca-Cola, 450 F.3d at 485-86.
Some courts, notably the Fourth Circuit, interpret the doctrine narrowly, requiring, inter alia, evidence that the biased actor was principally responsible for the adverse employment action. See Lockheed Martin, 354 F.3d 277, 291 (4th Cir. 2004) (en banc) (“[A]n aggrieved employee who rests a discrimination claim under Title VII or the ADEA upon the discriminatory motivations of a subordinate employee must come forward with sufficient evidence that the subordinate employee possessed such authority as to be viewed as the one principally responsible for the decision or the actual decisionmaker for the employer.”). Other courts, such as the Ninth Circuit have declined to adopt this narrow standard, noting that “many companies separate the decisionmaking function from the investigation and reporting functions, and that . . . bias can taint any of those functions.” Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (quoting BCI Coca-Cola, 450 F.3d at 488); see also Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir. 2004) (criticizing the Fourth Circuit’s approach as “inconsistent with the normal analysis of causal issues in tort litigation”). Under the more expansive standard, bias may be imputed to the employer where the biased subordinate influences the employer’s decision. See Poland, 494 F.3d at 1182 (imputing liability where (1) the biased subordinate “sets in motion a proceeding . . . that leads to an adverse employment action” and (2) “the plaintiff can prove that the . . . biased subordinate influenced or was involved in the decision or decisionmaking process.”); BCI Coca-Cola, 450 F.3d at 490-93 (denying summary judgment where the decisionmaker relied primarily on facts provided from a biased subordinate). On the other hand, an employer can usually defeat subordinate bias theories where it performs an independent investigation of the allegations against the employee. Id. at 488.
In Staub, the Supreme Court makes clear that an independent investigation will not insulate the employer from liability if the investigation relies on facts provided by the biased supervisor.
In light of the decision in Staub, courts should consider giving a charge as follows:
If you find that Plaintiff’s supervisor, , acted out of [racial, gender, etc.] bias in doing the following [issuing discipline, giving a negative performance review, etc.], that he intended that his act would cause an employment action adverse to the plaintiff and that his act was the proximate cause of the ultimate employment action, then you will find for the Plaintiff on her claim under [Title VII, USERRA, etc.]
