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Monday, September 24, 2018

Cat's Paw Theory Applies In WA State

by Gregory Williams, Esq. | Under the various employment discrimination theories of liability in Washington state, what is the “Cat’s Paw” Theory? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).


The Cat’s Paw Theory of liability is a another term for subordinate bias liability and can be defined in Washington State as follows: If a supervisor performs an act motivated by retaliatory animus that is intended by the supervisor to cause an adverse employment action, and if that act is relied on by the employer and is a substantial factor in the ultimate employment action, then the employer is liable for retaliation. See Boyd v. State, 187 Wn.App. 1, 20, 349 P.3d 864 (Div. 2 2015).


According to the Cat’s Paw Theory, "the animus of a non-decision-maker who has a singular influence may be imputed to the decision-maker." Id. at fn.1 (referencing, Staub v. Proctor Hosp., 562 U.S. 411, 131 S. Ct. 1186, 179 L. Ed. 2d 144 ( 2011)).
The term “cat’s paw” originated in the fable, “The Monkey and the Cat,” by Jean de La Fontaine. As told in the fable, the monkey wanted some chestnuts that were roasting in a fire. Unwilling to burn himself in the fire, the monkey convinced the cat to retrieve the chestnuts for him. As the cat carefully scooped the chestnuts from the fire with his paw, the monkey gobbled them up. By the time the serving wench caught the two thieves, no chestnuts were left for the unhappy cat.
Id. (citing, Julie M. Covel, The Supreme Court Writes A Fractured Fable of the Cat’s Paw Theory in Staub v. Proctor Hospital [ Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011)], 51 Washburn L.J. 159 ( 2011)). "In the workplace, the cat represents an unbiased decision-maker who disciplines an employee unknowingly due to a supervisor’s bias, represented by the monkey." Id. (citing, Edward Phillips, The Law at Work: Staub v. Proctor Hospital: The Cat’s Paw Theory Gets Its Claws Sharpened, 47 Tenn. B.J. June, 2011, at 21).


Oftentimes, the employer-defendant under a Cat’s Paw theory of liability will claim that it conducted an “independent investigation” and found an unrelated basis for the adverse employment actions upon which the plaintiff-employee seeks recourse. In such a case, employers will typically argue that the so-called independent investigation was a supervening cause of any retaliatory animus. Nevertheless, the employer may not necessarily be relieved of liability.

If the independent investigation "relies on facts provided by the biased supervisor—as is necessary in any case of cat’s-paw liability—then the employer (either directly or through the ultimate decision maker) will have effectively delegated the factfinding portion of the investigation to the biased supervisor." Boyd, 187 Wn.App. at 18. Accordingly, the plaintiff may have a firm basis to argue that a causal connection exists, depending on the evidence. See, e.g., id.


If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.


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