The Supreme Court has confirmed that an employer may be liable for workplace discrimination or retaliation even though it is undisputed that the ultimate decision-maker himself or herself has no bias or retaliatory motive. How can this be possible? According to the Court, the logic behind the "cat's paw" theory can play out as follows: (1) a supervisor takes a step for a biased or retaliatory reason with the intention of getting the employee fired, demoted, and penalized; and (2) the supervisor's step is the "proximate cause" of the ultimate decision, even if the person making the final decision had no discriminatory bias, retaliatory motive, or even any knowledge of the alleged protected activity. In the case before the Court, the plaintiff alleged that his supervisors placed unfavorable entries in his personnel record and created special work rules just for him, all because of their hostility towards the time missed due to his military service. The VP of Human Resources later terminated the plaintiff after receiving a report from the same supervisor that the plaintiff had violated the terms of a previously issued corrective action.

The "cat's paw" theory is not novel, and has been recognized by courts in various forms. The Supreme Court's adoption of a "proximate cause" standard, however, will be a challenge to employers, who may now be liable for the unknown biases and motives of first level supervisors. The Court even noted that the decision-maker's own investigation may not necessarily absolve the employer from liability. In other words, the person making an adverse employment decision cannot blindly rely upon the discriminatory acts and recommendations of supervisors.

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