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“Cat’s Paw” Liability – Employer’s liability for an employee’s discriminatory conduct

Several months ago, the Second Circuit Court of Appeals issued a decision that warrants attention by employers. The case involved the following essential facts:

After receiving unwanted sexual photographs from a co-worker, the recipient (a New York ambulance company employee named Vasquez) reported the incident to her supervisor and filed a formal complaint with the employer. The employer promised to investigate the complaint; however, when the co-worker (who had since learned of the complaint) was confronted, he provided the employer falsified documents that purported to show that he and Vasquez were involved in a consensual relationship. Despite her denials of the co-worker’s story, the Company declined to look at the information Vasquez attempted to offer to refute the co-worker’s assertions and to demonstrate the fraudulent nature of his documents. Instead, based solely on the co-worker’s documents, the company terminated Vasquez’s employment on the ground that she had engaged in sexual harassment of the co-worker.

Vasquez filed suit in U.S. District Court alleging a violation of Title VII of the Civil Rights Act of 1964, (prohibiting employment discrimination based on protected classifications) claiming that she was wrongfully terminated by her employer in retaliation for filing the sexual harassment complaint. The employer responded to the claim arguing that it had acted on information provided by her co-worker and that it should not be held responsible for the co-worker’s discriminatory intent. Importantly, the co-worker at issue was not a supervisory employee and had no decision-making authority.

Although the District Court accepted the employer’s argument, the Second Circuit Court of Appeals saw things differently. Using a legal principle that has been termed “cat’s paw” liability, the Court determined that Vasquez could recover from the employer if it was found to have been negligent in allowing the co-worker’s false allegations to result in the adverse employment action. In this case, by considering only the co-worker’s accusations, to the exclusion of the complainant’s information, “when it knew or, with reasonable investigation, should have known of [the co-worker’s] retaliatory animus,” the employer’s negligence left it liable for the co-worker’s discriminatory intent – even though the employer itself lacked such intent. Under these circumstances, the fact that the co-worker was not a supervisor and had no decision-making authority offered the employer no protection from liability.

This case places even more import on the existing EEOC requirement that employers respond to discrimination claims by performing prompt, thorough and impartial workplace investigations. Such investigations should be undertaken by someone having the skill and training necessary to make independent assessments of the facts and reach reasoned determinations of credibility.

For more information on obtaining assistance with Independent Workplace Investigations, please contact Brown Jacobson’s Employment Practices Group.