Seventh Circuit Review


Human resources personnel may be surprised to learn that they are now vulnerable to a lawsuit when a plaintiff invokes the "cat's paw" legal doctrine. In an issue of first impression, the Seventh Circuit found that, pursuant to a 42 U.S.C. § 1981 retaliation claim, an employee can be held individually liable for his or her actions that contributed to an adverse employment action against a fellow employee. Now, not only are employers held liable under "cat's paw," employees are too. The concept of "cat's paw" applies to an employment discrimination action when a final decision-maker relies on a subordinate's recommendation that is motivated by discriminatory animus, and then that final decision-maker takes an adverse employment action against another employee.

In 2012, in Smith v. Bray, the Seventh Circuit had the opportunity to rule on a case where a plaintiff brought an employment discrimination suit under § 1981 against an individual. The court correctly found that in certain circumstances, an employee can be liable for his or her actions that contribute to an adverse employment action against a fellow employee. First, expanding liability is proper because, similar to 42 U.S.C. § 1983 under which multiple circuits have approved of individual liability, § 1981 supports holding individuals accountable for the deprivation of another individual's civil rights. Additionally, fairness dictates that courts may hold a malicious individual, not just the employer, liable in a § 1981 action, especially if recovering from that individual is the plaintiff's only chance at being made whole.

This Note discusses how the Supreme Court, the Seventh Circuit, and other federal circuits have interpreted the "cat's paw" doctrine, and argues that it is appropriate in specific circumstances to expand the doctrine's sphere of liability to include employees who intentionally cause an adverse employment action. This Note concludes that the Seventh Circuit is correct in its decision to create liability for an individual employee in a § 1981 retaliation action.

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