BIG CASE ON ‘CAT’S PAW’ LIABILITY! WHAT’S THAT MEAN AGAIN?

Employers are being warned in the wake of an appeals court case to take extra care with discrimination and harassment investigations, because "cat’s paw" liability is poised to reach out and claw them.

The employment law experts reading this are most likely nodding their heads in agreement, while the rest of you are probably scratching your heads in puzzlement.

The employee in the case, Andrea Vasquez, complained about sexual harassment, but she’s the one who got fired. She said the accused harasser supplied false information, and the employer relied on his fabricated evidence in concluding that Vasquez herself engaged in harassing conduct.

This is where we decipher the "cat’s paw" idiom, which refers to using someone as a tool or getting them to do your dirty work. It comes from a fable in which a monkey convinces a cat to scoop roasting chestnuts out of a fire. The monkey eats the chestnuts, and all the cat gets for its troubles is a burned paw.

Under the cat’s paw theory of liability, the employer’s the one that can get burned if it's shown that a nonbiased supervisor who made the decision to discipline an employee was influenced to do so by another worker who harbored a discriminatory or retaliatory intent against the employee. When applied to the case at hand, the cat’s paw doctrine means there’s a potential for liability even if the employer fired Vasquez based on an honest belief that she engaged in misconduct.

Vasquez claims the investigation was flawed, and the employer should have known that the co-worker was making accusations against her in order to retaliate. A federal appeals court found that Vasquez has a viable case under Title VII of the 1964 Civil Rights Act, and it overturned a lower court’s dismissal of her retaliation claims (Vasquez v. Empress Ambulance Serv., Inc., 2016 BL 280409, 2d Cir., No. 15-03239, 8/29/16).

What Vasquez complained to her employer about was receiving unsolicited advances and a sexual photograph from a male co-worker. According to the court’s opinion, she promptly informed her supervisor and filed a formal harassment complaint, which her employer promised to investigate. The co-worker allegedly found out he was being reported, manipulated an exchange of text messages with someone else, and presented the texts as evidence of a consensual relationship with Vasquez.

Despite her denials and an offer to hand over her own cell phone to show that no such messaging had occurred, Vasquez said the employer accepted the co-worker’s false information as "proof" of improper conduct. There was no further investigation, and Vasquez was fired for sexual harassment the same day she filed her complaint.

The appeals court’s ruling means she’ll get a chance to show that the employer is liable for retaliation because of its alleged negligence in handling the situation.

And what was that negligence? The employer allegedly allowed the co-worker’s false information to form the sole basis of its termination decision, crediting his "accusations to the exclusion of all other evidence, and specifically declining to examine contrary evidence tendered by Vasquez, when it knew or, with reasonable investigation, should have known" that the co-worker was motivated by an intent to retaliate against Vasquez, the court said.

One reason the ruling’s significant is that it expands cat’s paw liability to include situations where a low-level worker corrupts an otherwise neutral supervisor's decision-making process.

But more importantly for employers and HR professionals, this case should serve as a reminder to take into account not only the information they receive when investigating complaints of harassment and discrimination, but also the source of that information.

In other words, don’t play the credulous cat to the malevolent monkey and get burned by a lawsuit.

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