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September 8, 2016

You Can't Accept It at Face Value

The United States Court of Appeals for the Second Circuit ruled last week that an employer can be held liable for acting on bad information from an employee when it takes adverse employment actions. In Vasquez v. Empress Ambulance Service Inc., case number 15-3239, the Second Circuit, for the first time, expressly adopted the "cat's paw" theory and even somewhat expanded upon it.

The "cat's paw" phrase derives from a fable in which a wily monkey flatters a naïve cat into pulling roasting chestnuts out of a fire for their mutual satisfaction; the monkey, however, eats all of the chestnuts immediately leaving the cat "with a burnt paw and no chestnuts" for its trouble. In the employment discrimination context, as explained by the court, the "cat's paw" metaphor now "refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action." Because the supervisor, acting as agent of the employer, has permitted himself to be used "as the conduit of [the subordinate's] prejudice," that prejudice may then be imputed to the employer and used to hold the employer liable for employment discrimination. In other words, by merely effectuating or "rubber-stamp[ing]" a discriminatory employee's "unlawful design," the employer may play the role of the credulous cat to the malevolent monkey and, in so doing, allow itself to get burned"”i.e., successfully sued.

In Vasquez, the plaintiff was a medical technician for the defendant ambulance service. The plaintiff alleged that she received an unwanted, sexually explicit text message from a co-worker. She immediately reported the matter to her supervisors and filed a report. However, between the time of her report and her meeting with company representatives, the co-worker allegedly falsified documentation, including a text message conversation, that made it appear as if the plaintiff had been the one willfully engaged in improper and sexually explicit messaging with him. The plaintiff alleges that the company accepted the dispatcher's account and falsified evidence without considering the evidence that she was willing to present for inspection (her cell phone). The company representatives allegedly refused the evidence offered and fired both the plaintiff and the co-worker for engaging in inappropriate conduct.

Prior to Vasquez, the "cat's paw" theory had only applied when the individual with the discriminatory motive (i.e. the manipulative monkey) was a supervisor. Vasquez extended that to any employee of the defendant company (even a low level employee), so long as that employee's conduct played a "meaningful role" in influencing the decision-maker to take action against the plaintiff.

The court was clear, however, that the "cat's paw" theory should not be construed as holding an employer liable simply because it acts on information provided by a biased co-worker. The court stated that courts must still look to what "motivated" the employer and not just the truth of the allegations against the plaintiff on which the employer relies. Thus, an employer who, non-negligently and in good faith, relies on a false and malign report of an employee who acted out of unlawful animus still cannot be held accountable for or said to have been "motivated" by the employee's animus. Rather, it is only when an employer in effect adopts an employee's unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision, can the employee's motivation be imputed to the employer and used to support a claim under Title VII.

In other words, an employer can still "just get it wrong" without incurring liability under the "cat's paw" theory, but it cannot "get it wrong" without recourse if in doing so it negligently allows itself to be used as conduit for even a low-level employee's discriminatory or retaliatory prejudice. In Vasquez, the court found that there were sufficient allegations in the complaint to suggest that the defendant employer may have acted negligently in adopting the co-workers version of events and evidence, and, thus, held that it was improper for the lower court to dismiss the case at that stage of the litigation.

The Second Circuit's adoption of this theory should put New York employers on notice that they must conduct a thorough investigation, in a good-faith and non-negligent manner, with consideration to where the evidence is coming from and the motivations of the individuals providing it.


If you have any questions about compliance, or are unsure how this new enforcement initiative may impact your business, please contact the Labor & Employment attorney at Barclay Damon with whom you normally work or any attorney in our Labor & Employment Practice Area.

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