Tag Archives: Civil Rights Act 1866

Employees Can Be Held Personally Liable Under Section 1981 Based on "Cat’s Paw" Theory

by Peter M. Panken

The Seventh Circuit Court of Appeals recently held, in a case of first impression, that a manager who was not the actual decision-maker in an employee’s discharge could still be held personally liable under Section 1981 of the Civil Rights Act of 1866 under a “cat’s paw” theory of liability.

In Smith v. Bray, Darrel Smith claimed that he had been subjected to racial harassment by his immediate supervisor, James Bianchetta, and that he was fired because he reported this harassment to a human resources manager, Denise Bray.  The employer’s liability was discharged after it went bankrupt, but Smith had also sued Bianchetta and Bray individually for their roles in his termination. Bianchetta settled privately, and the District Court found that Bray had no liability and granted her motion for summary judgment. While the Seventh Circuit affirmed, it did so under a different rationale, endorsing the “cat’s paw” theory of liability for individuals who, with an unlawful motive, persuade the decision-maker to terminate an employee—but ultimately finding insufficient evidence against Bray under this theory.

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