The U.S. Supreme Court is currently scheduled to examine the “cat’s paw” theory of liability for employment discrimination during its next term. The issue before the Court in a case entitled Staub v. Proctor Hospital is: “In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make [an] ultimate [negative] employment decision?”

The plaintiff in Staub, an Army reservist, sued his employer under the Uniformed Services Employment and Reemployment Rights Act (USERRA) after the company’s vice president of Human Resources terminated his employment. According to Staub’s theory of the case, the Human Resources V.P. acted as a “cat’s paw” for non-decision makers who allegedly harbored anti-military animus and provided adverse information regarding plaintiff’s professional conduct.

After hearing evidence regarding the discriminatory animus of Staub’s direct supervisors, the jury in an Illinois district court found the employer liable, even though plaintiff presented no evidence of discriminatory animus on the part of the ultimate decision maker–the Human Resources V.P. The district court allowed the jury verdict to stand, but the U.S. Court of Appeals for the Seventh Circuit reversed the lower court’s decision.

As the Seventh Circuit explained, the term “cat’s paw” comes from a 17th century fable authored by French poet Jean de La Fontaine. In the fable, a monkey persuades a cat to snatch chestnuts from a fire. While the cat burns her paw in the fire, the monkey makes off with the chestnuts. Today, the federal appeals court explained, a cat’s paw is “a ‘tool’ or ‘one used by another to accomplish his purposes.’”

According to the Seventh Circuit, Staub could not prevail under the cat’s paw theory. “[T]rue to the fable, [to be a cat's paw] requires a blind reliance, the stuff of ‘singular influence,’” the court explained. “[T]he discriminatory animus of a nondecisionmaker is imputed to the decisionmaker [only] where the former has singular influence over the latter and uses that influence to cause the adverse employment action.”

The U.S. Supreme Court agreed to review the Seventh Circuit’s decision to resolve a circuit split regarding what degree of influence over the ultimate decision maker is required under the cat’s paw theory. While the Seventh Circuit has adopted something akin to a “functional decisionmaker” standard, in other circuits, an employer may be liable if the bias official’s discriminatory intent in some way caused the result, including by providing adverse information to the ultimate decision maker. Courts in other circuits have allowed evidence regarding discriminatory animus of a non-decision maker if the biased official “influenced” or “played a role” in the final decision.

The U.S. Supreme Court is scheduled to hear oral argument in Staub on November 2nd.

Vincent A. Cino is a partner in the Morristown, N.J., office of Jackson Lewis LLP. He is the firm’s National Director of Litigation.