November 30, 2021

Volume XI, Number 334

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November 29, 2021

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Employers May Be Accountable for Low-Level Employee Actions - Watch Out for the Cat’s Paw

In the world of employment law, there is something called the “Cat’s Paw” theory of liability. The name comes from a fable dating back to the 17th century in which a clever monkey persuades a naïve cat to pull roasting chestnuts from a fire for the pair to eat. However, as the cat removes the chestnuts, the monkey eats the whole treat and leaves the cat with a burned paw and no chestnuts to show for its trouble.

What does this have to do with employment law? In discrimination or retaliation cases, a plaintiff has to prove that the employer intended to discriminate and/or retaliate against him or her. Traditionally, such discriminatory intent must come from management employees who actually made the employment decision at issue.

discrimination retaliation harassment

However, under the Cat’s Paw theory the company can be held responsible for the supervisor’s bad intent, even where that person did not directly make any decisions. When a court applies this theory, if a supervisor or management employee harbors some type of discriminatory animus against the employee and influences the decision, even if he does not actually make the decision, that influence may be sufficient to establish liability. As the theory goes, the company is the cat, an unwitting part in the monkey’s plot, and the supervisor is the monkey.

In a recent case from the United States Court of Appeal for the Second Circuit (encompassing Connecticut, New York, and Vermont), the court expanded the Cat’s Paw theory to include lower-level employees – not just supervisors or managers – as possible influencers of company decisions. In the case, a female Emergency Medical Technician (EMT) for an ambulance company received unsolicited and unwanted sexual photographs from a male co-worker. She immediately complained to management about the photos, alleging sexual harassment. The employer promised to promptly conduct an investigation into the incident. However, the co-worker who sent the harassing photos quickly learned of the complaint and sent forged documents to management that made it appear that the EMT had in fact consented to receiving the photos and had actually solicited a sexual relationship with him. The company terminated the EMT’s employment, based on the forged documents and denied her request to present evidence that the documents were forged.

The EMT subsequently filed a lawsuit against the company, alleging that she was terminated in retaliation for making a complaint of sexual harassment. At the trial court level, these claims were dismissed because the court determined that the employer could not be held responsible for the retaliatory animus of the co-worker, a fellow hourly employee with no authority to terminate her employment – i.e., it held that the Cat’s Paw theory could not be applied to hourly, non-management-level employees. However, on appeal, the appellate court reversed that decision and held that the company could, in fact, be held responsible for the hourly employee’s retaliatory intent because the company was negligent in its investigation of the incident and its reliance upon the forged documents. In so doing, the court expanded the so-called “Cat’s Paw” liability to include lower-level employees when the employer was negligent, where in the past the theory had been reserved for the intent/animus of supervisors and other management employees only.

The lesson for employers in this is case is to tread carefully when investigating claims of this type or any complaint from their employees. Those investigating the complaints should carefully consider the source of all information and whether that source may have a discriminatory or retaliatory motive to provide false or misleading information. Most importantly, the employer should accept and consider evidence from both sides of a story in order to understand a full picture of what occurred and make a fully informed decision.

© 2021 Foley & Lardner LLPNational Law Review, Volume VI, Number 263
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About this Author

Felicia S. O'Connor, Foley Lardner, Automotive Industry Lawyer, Labor Attorney
Associate

Felicia O’Connor is an associate and litigation lawyer with Foley & Lardner LLP. She is a member of the Labor & Employment Practice and the Automotive Industry Team. Previously, Ms. O’Connor worked as a summer associate in Foley’s Detroit Office. She has also served as a law clerk for Oakland City Attorney’s Office, where she conducted research and prepared memoranda on a range of municipal law topics.

313-234-7172
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