Thursday, February 16, 2017

Fisher v. Lufkin Industries: When does "cat's paw" liability apply to coworker discrimination?

In Fisher v. Lufkin Industries, Inc., No. 15-40428 (Feb. 10, 2017), the Fifth Circuit overlooked agency principles in mistakenly concluding that the "cat's paw" theory applies in the same manner to the discriminatory actions of a coworker as it does to the discriminatory actions of a supervisor acting in his official capacity.

Under the cat's paw theory, an employer is liable when a decisionmaker acts without discriminatory animus but is influenced by another individual who does act with discriminatory animus. For example, a human resources official may decide to fire an employee based in part on the discriminatory recommendation of the employee's supervisor. Under the cat's paw theory, the employer would be liable for the termination even if the HR official did not act with discriminatory animus and was unaware of the supervisor's bias.

Judge Richard Posner coined the term "cat's paw" in reference to a fable in which a monkey uses flattery to trick a cat into extracting chestnuts from a fire. Burning his paws in the process, the cat drops the chestnuts, and the monkey runs off with them. I like to think my own cats wouldn't fall for that, but just to be on the safe side, I keep them away from monkeys and roasting chestnuts.

In Staub v. Proctor Hospital, the Supreme Court grounded cat's paw liability in agency principles. If a biased lower-level supervisor uses her official authority to cause a decisionmaker to unwittingly take an adverse action against an employee, then pursuant to agency principles, liability for the lower-level supervisor's conduct is imputed to the employer.

In Fisher, the court cited Gorman v. Verizon Wireless Texas, LLC, 753 F.3d 165 (5th Cir. 2014), for the proposition that the cat's paw theory applies to coworkers, but Gorman merely indicates that the cat's paw theory applies to coworker discrimination if the decisionmaker "rubber stamps" a coworker's recommendation. Under such circumstances, the decisionmaker has effectively delegated the decisionmaking authority to the coworker, so the coworker has effectively acted as the employer's agent.

Typically, however, a coworker's action will neither involve the use of official authority nor will it be merely rubber stamped by the putative decisionmaker. As a result, liability for the coworker's bias cannot be imputed to the employer, and the cat's paw theory only applies if there is some other basis for holding the employer liable. In the recent Second Circuit case of Vasquez v. Empress Ambulance Service, Inc. (please see my prior post), the court held that the cat's paw theory applies to discriminatory coworker conduct if the employer is negligent in allowing the coworker's discriminatory bias to result in an adverse action against another employee. In other words, the employer is liable if it knew or should have known about the coworker's bias, and the employer's failure to act reasonably caused or allowed the coworker's biased conduct to result in an adverse action against an employee. 

The standards in Staub and Vasquez are vastly different. Under the Staub standard, the employer is liable if an adverse action follows a lower-level supervisor's biased recommendation unless the employer can show that it took the adverse action for "reasons unrelated to the supervisor's original biased action." By contrast, the Vasquez standard requires that the employer have had notice of the coworker's bias, that the employer have acted unreasonably, that the employer's unreasonable conduct have resulted in the adverse action, and that the plaintiff make these showings. Thus, under Staub, the employer must break the causal chain between the lower-level supervisor's bias and the adverse action whereas, under Vasquez, the employee must establish a causal chain between the employer's negligence and the adverse action.

In Fisher, the plaintiff alleged that he was fired after a coworker and a supervisor retaliated against him for complaining about a comment that the plaintiff perceived to be racist. Because the allegedly retaliatory actions were taken by both a supervisor and a coworker, the court's failure to distinguish between the different kinds of cat's paw liability was inconsequential insofar as the plaintiff's claim was concerned. But the day is bound to come when another court looks to Fisher for guidance on how to evaluate cat's paw liability in a more typical case involving coworker bias.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.