Quite often HR employees and corporate executives make decisions based on a subordinate or co-employee’s recommendation. However, this may sometimes lead to the Cat’s Paw problem. The Cat’s Paw theory was first brought to life in Judge Posner’s comments in Shager v. UpJohn Co., 913 F.2d 398, 405 (7th Cir. 1990).
The idea is that a subordinate or co-employee uses the HR employee or corporate executive to discriminate against another. For example, John does not like Joan, because she refuses to go out with him. John, makes recommendations in a report from a corporate conference to Joan’s supervisor, Adam. Adam adopts, references or uses the recommendations to tell HR not to promote Joan. This can be enough to make the employer liable to Joan on a sex discrimination or harassment theory.
The Cat’s Paw theory has received new life in EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th Cir. 2006). However, there are decisions that take a middle ground approach on the Cat’s Paw Theory (Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir. 2000) and some that flat out reject the Cat’s Paw Theory (Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277 (4th Cir. 2003).
This is an important issue in modern days where we are all multi tasking and often rely upon reports and recommendations from others to make decisions. However, there are important policy considerations on both sides of the Cat’s Paw Theory and a more detailed analysis can be found in the aforementioned cases. The BCI Coca Cola decision is provided for your consideration, entertainment and review.
Enjoy and Thanks!