A number of federal courts have held that, under the “cat’s paw” doctrine (named after an Aesop’s fable), an adverse employment decision based on information from a supervisor with discriminatory or retaliatory animus may provide the basis for employer liability under Title VII. However, it has not been clear that an adverse action based on information from a non-supervisory employee could similarly trigger employer liability. The United States Court of Appeals for the Second Circuit recently answered that question by extending the reach of the “cat’s paw” in Title VII cases, holding that an employer may be liable for an adverse employment decision that was influenced by the retaliatory intent of a low-level, non-supervisory worker. Vasquez v. Empress Ambulance Service, Inc., et al., Docket No. 15-3239 (2d. Cir. Aug. 29, 2016).
Vasquez, a female emergency medical technician for Empress, received a sexually graphic image via text message from a male co-worker. Vasquez notified her supervisor and began preparing a formal complaint. Before Vasquez finalized her complaint, the co-worker began fabricating evidence that he and Vasquez had been involved in a consensual sexual relationship. When Empress questioned him about Vasquez’s allegation, the co-worker provided doctored text messages to corroborate his story and manipulated the graphic image to make it appear that Vasquez had sexually harassed him.
Vasquez offered to show Empress her own phone to discredit the co-worker’s story, however, Empress stated it had already reviewed the “evidence” and terminated Vasquez for engaging in sexual harassment. Vasquez filed suit, asserting that the decision to terminate her constituted retaliation in violation of Title VII. She argued under a cat’s paw theory that the decision was influenced by false information provided by the co-worker. The district court dismissed her complaint, concluding that an employer cannot be held liable for the discriminatory or retaliatory intent of a non-supervisory worker.
In reversing the district court, the Second Circuit held that an employer may be liable under a cat’s paw theory for an employee’s animus, regardless of that employee’s role within the organization. Applying agency principles, the Court found that Vasquez could recover if Empress itself acted negligently in relying on the biased co-worker’s allegations when making the decision to terminate her. The Court found that an employer’s own negligence provides an independent basis to treat the co-worker as an agent and establish employer liability. The Court made clear, however, that the cat’s paw approach does not automatically impute liability for an employer’s simply acting on information provided by a biased employee. Rather, liability may only be imputed if an employer gives effect to the employee’s animus by acting negligently with respect to the information provided. As stated by the Court, “[p]ut simply, an employer can still “just get it wrong” without incurring liability under Title VII [] 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.”
This decision brings the Second Circuit in line with several circuits in applying the cat’s paw theory of liability in Title VII retaliation claims, including the Third, Fifth, Sixth, Seventh, and Eighth Circuit Courts of Appeals. It also highlights the importance of conducting thorough and impartial employer investigations, particularly when an adverse employment decision turns on information provided by a co-worker.