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Labor & Employment Law

Posner Opinion Hits ‘Dreadful Muddle’ of Vague Judicial Terminology, Takes a Swipe at Cat’s Paw

Posted Mar 13, 2012 5:30 AM CDT
By Debra Cassens Weiss

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A federal appeals court has reversed an employment verdict in an opinion that blames “vague judicial terminology” for adding confusion to workplace bias cases.

The opinion (PDF) by Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals reversed a verdict for an employer because of an “unsound” verdict form and jury instructions. The National Law Journal (reg. req.), the Wall Street Journal Law Blog and Reuters all have stories.

Posner said legal doctrine stated in metaphors—including the “cat’s paw” theory of employment law—had created confusion for judges, jurors and lawyers. “This is all a dreadful muddle, for which we appellate judges must accept some blame,” he wrote.

The opinion reversed a verdict for a security firm in a suit by onetime employee Deborah Cook, a security supervisor in Alton, Ill. She had alleged her immediate supervisor had fired her because of her gender and in retaliation for previous complaints about his sexually suggestive comments and male favoritism. The firing occurred when she showed up for her usual job after being informed by a higher-up that she was being transferred to a lower-paying position. The employer said Cook had never been fired; she quit in response to the transfer offer.

A jury verdict form asked jurors whether the immediate supervisor was the decision-maker who fired Cook. Jurors asked the judge whether the supervisor had to be the sole decision-maker, or a decision-maker, meaning he was part of the decision. The trial judge concluded that Cook had not advanced a so-called cat’s paw theory of liability, so the supervisor had to be the sole decision-maker.

But there was no need to inject “sole decision-maker” into the deliberations, Posner said. The jury had to choose between the two versions of the events advanced by Cook and her employer. "All the judge had to do was tell the jury that," Posner said.

The 7th Circuit had introduced the cat’s paw theory into employment discrimination law in a 1990 case. The concept is based on the fable in which a monkey persuades a cat to fetch chestnuts from a fire, causing the cat to burn its paw. In the law, the theory refers to a situation where a supervisor with no discriminatory motive (the cat) fires an employee because of manipulation by a subordinate (the monkey) who does have such a motive.

Here’s the portion of the opinion where Posner condemns confusing judicial metaphors: “This is all a dreadful muddle for which we appellate judges must accept some blame because doctrine stated as metaphor, such as the ‘cat’s paw’ theory of liability, which we introduced into employment discrimination law … can be a judicial attractive nuisance; because vague judicial terminology, such as ‘motivating factor’ and ‘proximate cause’ (the latter has been a part of the judicial vocabulary for the last 150 years, yet its meaning has never become clear …) confuses judges, jurors and lawyers alike; and because philosophical conundra such as ‘causation’ present unnecessary challenges to understanding.”

Hat tip to How Appealing.

Prior Cat’s Paw Coverage:

ABAJournal.com: “Federal Judge’s Footnote Hits Employment Lawyer for TMI in Legal Briefs”

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