The cat's paw makes its way into employment cases

A new case out of the Second Circuit (the federal Appeals Court in the New York-Connecticut region), Vasquez v. Empress Ambulance Serv., Inc., provides an example of a modern-day sexual harassment case as well as the further development of a doctrine called -- somewhat interestingly, for lawyers -- "the cat's paw."

The Court summarizes the facts of what happened to Ms. Andrea Vasquez (some additional line breaks added):

In the space of twenty-four hours, Andrea Vasquez faced unwelcome sexual advances in the workplace, complained about that conduct to her employer, and lost her job.

After receiving unsolicited sexual photographs from a co-worker one night shift, Vasquez promptly informed her supervisor and filed a formal complaint of sexual harassment, which her employer promised to investigate that same morning.

Within a few hours, however, Vasquez’s co-worker had discovered her complaint and had provided the employer with false documents purporting to show Vasquez’s consent to and solicitation of a sexual relationship.

In reliance on those documents, and notwithstanding Vasquez’s offers to produce evidence in refutation, Vasquez’s employer immediately fired her on the ground that she had engaged in sexual harassment.

What a mess.

After she was terminated, Vasquez filed suit against the company for wrongful termination in retaliation for complaining about sexual harassment.

The lower court (called the District Court in the federal system) dismissed Vasquez’s case, suggesting that the company could not be held liable for the retaliation of Vasquez’s co-worker, a low-level employee with no decision-making authority for the company.

On appeal, however, the Second Circuit said, not so fast. They concluded that it was actually the employer's negligence in not properly investigating Vazquez's allegations that gave effect to the co-worker's retaliatory animus. In other words, it was the company that, when provided with the forged evidence of the co-worker, chose simply to fire Vazquez as opposed to further investigate the matter (including by simply letting Vazquez provide evidence in refutation, as she offered to do). That, they concluded, gives rise to liability.

This is called “cat’s paw” liability by analogy to an Aesop fable "in which a wily monkey flatters a naïve cat into pulling roasting chestnuts out of a roaring fire for their mutual satisfaction; the monkey, however, 'devour[s]. . . them fast,' leaving the cat “with a burnt paw and no chestnuts” for its trouble."

(I feel like I have been that cat before.... But I digress....)

In an employment discrimination case (and that includes sexual harassment), the “cat’s paw” metaphor more specifically:

refers to a situation in which an employee is fired .... 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 [firing]....

In other words, by merely effectuating or 'rubber-stamp[ing]' a discriminatory employee’s “unlawful design,” the employer plays the credulous cat to the malevolent monkey and, in so doing, allows itself to get burned—i.e., successfully sued.

(citations omitted; line break added).

This case was decided by the Second Circuit, which does not have controlling effect in Massachusetts. That said, the First Circuit, which does, has already concluded similarly:

an employer can be held liable [] if: the plaintiff’s co-worker makes statements maligning the plaintiff, for discriminatory reasons and with the intent to cause the plaintiff’s firing; the co-worker’s discriminatory acts proximately cause the plaintiff to be fired; and the employer acts negligently by allowing the co-worker’s acts to achieve their desired effect though it knows (or reasonably should know) of the discriminatory motivation.”

Velazquez-Perez v. Developers Diversified Realty Corp., 753 F.3d 265, 274 (1st Cir. 2014).

The Court reminds: "We recognize that the impermissible bias of a single individual at any stage . . . may taint the ultimate employment decision in violation of Title VII. This is true even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the [decisionmaking] process." Bickerstaff v. Vassar Coll., 196 F. 3d 435, 450 (2d Cir. 16 1999)

The message for employers here is: be very careful in your employment investigations and decisions. It may make sense to consult an employment lawyer before taking disciplinary action, including terminating an employee, as good counsel can prevent employment litigation down the road.

And the message for employees is: if you experience something awful like this, contact a good employment lawyer to discuss your options. I can be contacted here.