In 1679, a little-known French poet named Jean de la Fontaine wrote a fable in which a monkey convinces an unknowing cat to steal chestnuts on the monkey’s behalf. The cat burns his paw; the monkey gets his chestnuts. The “innocent” monkey, thus, enjoys the benefits of the cat’s criminal efforts.
Within the last several months, two U.S. Supreme Court decisions and a high-profile California Supreme Court ruling have held that employers cannot escape liability for actions undertaken via the “cat’s paw” strategy. Despite arguably objective motives by ultimate decision-makers, the courts refused to exonerate employers as a matter of law where there was evidence of discrimination by others within the sphere of influence, even if not directly on the decision tree. These decisions stand for the proposition that employers cannot insulate themselves from liability by assigning facially neutral decision-makers to an otherwise-biased situation.