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

19 September 2016 Labor & Employment Law Perspectives Blog
Author(s): Felicia S. O'Connor

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.

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.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.


Related Services