Caught by the Cat's Paw

Forthcoming, BYU Law Review

45 Pages Posted: 22 Apr 2019

See all articles by Sandra Sperino

Sandra Sperino

University of Missouri School of Law

Date Written: March 22, 2019

Abstract

Federal employment discrimination law is enamored with court-created doctrines with catchy names. A fairly recent addition to the canon is the concept of the “cat’s paw,” formally recognized by the Supreme Court in Staub v. Proctor Hospital. With its name coined by Judge Richard Posner and drawn from a fable, the concept of cat’s paw has taken ground quickly, discussed in hundreds of cases.

This Article argues that the cat’s paw doctrine is a mistake, and the courts should abolish it. Before the Supreme Court recognized it as a separate doctrine, the Supreme Court decided numerous cases with facts that could now be called “cat’s paw” cases. The Supreme Court did not need or even mention the need for a new doctrine to adjudicate those cases. Strangely, the Supreme Court does not cite to any of these cases in Staub.

Indeed, these Supreme Court cases are going to cause a judicial headache as lower courts try to reconcile pre-Staub jurisprudence with the court-created cat’s paw doctrine. The current cat’s paw doctrine muddles rather than elucidates complex concepts of intent, causation, and agency liability.

Before cat’s paw doctrine becomes further entrenched, this Article provides a new and more complete history of the doctrine. This new history shows that courts did not need the cat’s paw doctrine prior to its creation. Even the Seventh Circuit decision that coined the phrase “cat’s paw” did not rely on cat’s paw to resolve the case.

Importantly, there is only one way to reconcile Staub with several other canonical Supreme Court cases — to read it as simply recognizing one set of facts under which a plaintiff could prevail under federal discrimination law. Some lower courts are interpreting Staub to place significant limits on the scope of discrimination law. However, using cat’s paw to limit the scope is inconsistent with numerous Supreme Court cases, as well as the text and purposes of the discrimination statutes.

Cat’s paw doctrine should be abolished while it is in its infancy because it is not needed and will likely lead to decades of confusion in employment discrimination jurisprudence.

Keywords: Discrimination, Civil Rights, Civil Procedure, Cat's Paw

JEL Classification: K31, K41

Suggested Citation

Sperino, Sandra, Caught by the Cat's Paw (March 22, 2019). Forthcoming, BYU Law Review, Available at SSRN: https://ssrn.com/abstract=3358637 or http://dx.doi.org/10.2139/ssrn.3358637

Sandra Sperino (Contact Author)

University of Missouri School of Law ( email )

Columbia, MO MO 65211

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