In one of Aesop’s fables, a monkey dupes a cat into pulling roasted chestnuts from a hot fire, promising the cat a share of the bounty. The flattered cat complies — burns its paw in the process — only to watch the monkey devour the whole snack. This imagery has become engrained in the employment-law concept of “cat’s paw” liability, a theory by which employers can be held responsible for the discriminatory animus of biased supervisors. The Tenth Circuit’s recent decision in Parker v. United Airlines (No. 21-4093, Sept. 26, 2022) provides a fresh reminder to employers on how to avoid liability under this theory.
Most laws that prohibit employment discrimination (including harassment and retaliation) don’t create individual liability for supervisors. Aggrieved employees can sue their employers, not their supervisors. When a supervisor wrongfully discriminates against an employee — e.g., fires the employee because of race, sex, or some other protected characteristic — that discriminatory act is imputed to the employer. That’s because supervisors usually function as agents of their employers.
But what if the biased supervisor isn’t the ultimate decisionmaker? What if the biased supervisor, for reasons that are discriminatory, lies to get an employee disciplined or fired? That’s where the cat’s paw theory comes in. If the ill-motivated supervisor manipulates or tricks the final decisionmaker — like the monkey did with the cat — then the employer can get burned. If, on the...
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