A seventeenth-century French poet’s reinterpretation of an old fable, the Monkey and the Cat, tells the story of a monkey that persuades a cat to reach into a fire. The cat retrieves chestnuts, burning its paw in the process, and the monkey makes off with the tasty reward. Modern English speakers have derived the term “cat’s paw,” meaning “one used as a tool by another.”
American courts have since adopted the metaphor. In a typical workplace discrimination case, when a supervisor terminates an employee due to racial animus, the employer is liable. Cat’s paw adds a twist. Even when the supervisor himself has no animus, if he (a cat) is influenced by another employee who does (a monkey), then the employer is still liable.
Recently, in Jones v. City of Hutto, the Fifth Circuit denied a former city manager’s “cat’s paw” theory, reversing an $8 million verdict. In this post, I suggest that the Fifth Circuit erred by conflating cat’s paw doctrine with respondeat superior liability, thus striking one tool from the dwindling toolbox that employees can use to hold government employers liable for discrimination.
The City of Hutto, Texas, hired Odis Jones in 2016 as its first Black city manager. In 2019, two city council candidates — Snyder and Rose — campaigned on the promise that they would “get rid of [Jones] and his staff.” They won. Jones faced much racial animus in the following months. After growing tensions, the city council and Jones entered a “without cause” separation...
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