Circuit Court recognizes “Cat’s Paw” Liability, clarifies liability for Employer Negligence

Casey Wolnowski

On August 29, 2016, the U.S. Court of Appeals for the Second Circuit explicitly recognized “cat’s paw” liability in Title VII discrimination matters, and further found that liability may be imputed to the employer on the basis of employer negligence. Casey Wolnowski, of Phillips & Associates, argued the case before the Second Circuit. The “cat’s paw” theory is based upon a poem by Aesop whereby a monkey tricks a naïve cat into pulling roasting chestnuts from a fire, only to eat all the chestnuts once pulled from the fire while the cat is left with nothing but burnt paws. Injected into employment discrimination law, the poem is used to refer to a situation in which an employee is fired or subjected to some other adverse employment action by a decisionmaker who has no discriminatory motive himself, but who has been manipulated by an employee who does have such a motive and an intent to bring about the adverse employment action through his or her own bad acts.

As applied to the case at hand, the plaintiff Vasquez complained to her supervisors that a co- worker had sexually harassed her. However, according to the pleadings, the co-worker concocted a story and showed the employer fake “proof” to get back at her, claiming that she had been sexually harassing him. Vasquez protested that he was lying and asked to see this “proof.” The employer refused to show it to her. Vasquez also offered to show them her proof, but the employer again declined. Her employer then fired her. In her lawsuit, Vasquez claimed that her employer was negligent for failing to recognize that her co-worker’s actions were retaliatory in nature.

The District Court dismissed Vasquez’s lawsuit, holding that the employer cannot be liable when the bad acts are conducted by a co-worker as opposed to a supervisor. The Court of Appeals disagreed and found that an employer may be liable when the employer’s own negligence gives effect to the unlawful intent of any employee (co-workers included).

With its decision, the Second Circuit, in a case of first impression for the Court, explicitly recognized “cat’s paw” liability in Title VII discrimination matters. Furthermore, the Court also held for the first time that an employer may be held liable if the employer was itself negligent in allowing a retaliating employee to achieve his or her desired effect when it knew or should have known of that employee’s retaliatory animus. The full decision can be read here.

Casey Wolnowski, of Phillips & Associates, represents the plaintiff Vasquez and argued the appeal before the Second Circuit. He is a New York-based employment discrimination attorney who focuses on “Cat’s Paw” liability and employer negligence. “This is a victory for employees,” Mr. Wolnowski said. “This legal precedent will hopefully emphasize the need for employers to conduct thorough investigations when confronted with employees complaining of unlawful discrimination.”

Mr. Wolnowski is one of the leading practitioners in the area and, following this decision, was quoted in articles published by Bloomberg BNA, the New York Law Journal, the Wall Street Journal, as well as Law360.

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