While the United States Supreme Court already has issued a host of employment-related decisions this year – some of which we discussed here, here, here and here – the Nation’s Highest Court will soon issue another, and this time, hopefully settle a deep conflict among the Federal Circuits with respect to an issue that has long divided the employment law community: the so-called “Cat’s Paw” theory of liability.

Under the ‘Cat’s Paw’ theory, an employer can be liable for discrimination when the ultimate decision maker is influenced by another employee whose discriminatory intent or motives influence the ultimate decision maker.

In April of this year, the U. S. Supreme Court granted review in Staub v. Proctor Hospital, a case involving Vincent Staub, a member of the U.S. Army Reserves. At trial in a Federal District Court in Illinois, Staub alleged that he was fired from his hospital technician job because a mid-level supervisor was anti-military and resented the time that he required to attend reserve drills and training programs. In actuality, Staub was terminated by a higher level executive – the Vice President of Human Resources – for alleged insubordinate behavior. Consistent with the ‘Cat’s Paw’ theory, Staub did not allege that the Vice President was biased in any fashion; rather, he alleged that the Vice President’s decision to terminate Staub was influenced by the lower level allegedly “anti-military” supervisor.

Ultimately, the jury awarded Staub a little over $57,000. However, the United States Circuit Court of Appeals for the Seventh Circuit reversed the verdict in March 2009 and in doing so, limited the application of the ‘Cat’s Paw’ theory, allowing it to be utilized only when the lower level employee’s discriminatory intent had a “singular influence” over the ultimate decision maker. In so holding, the Seventh Circuit joined other circuits which severely limit the use of the doctrine, contrasting that collective view with that of several other circuits – including the First, Third, Fifth and Ninth – all of which allow use of the doctrine in broader instances and levels of influence.

Interestingly, twice before, the U.S. Supreme Court has agreed to hear “Cat’s Paw” cases. In each instance, however, the cases were settled before oral argument occurred. Let’s hope that doesn’t occur again in this case.

Jim Wright concentrates his practice in the area of complex and commercial litigation, particularly in the areas of energy, labor and employment and construction law as well as other business matters. He has also represented professionals before state licensure boards. During his career, he has tried numerous cases in state and federal courts throughout West Virginia and Ohio. He has also argued cases before the United States Court of Appeals for the Sixth Circuit, the West Virginia Supreme Court of Appeals and various appellate courts in the State of Ohio. Jim is a also a recognized leader in the profession, having served as a member of the West Virginia State Bar Board of Governors and currently serving as the State Bar’s Vice President.
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