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Can Employers Be Liable for Its Low-Level Employee’s Retaliation?

By Katherine I. Tracy

As the Second Circuit Court of Appeals recently held, the answer is, surprisingly, yes. In its August 29, 2016 opinion in Vasquez v. Empress Ambulance Serv., Inc., 2016 WL 4501673, the Court applied the “cat’s paw” theory to reinstate an employee’s retaliation claim based on her report of sexual harassment. In employment discrimination cases, the “cat’s paw” theory “refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action.” Cook v. IPC Intern. Corp., 673 F.3d 625, 628 (7th Cir. 2012).

As summarized by the Court, “In the space of twenty-four hours, Andrea Vasquez faced unwelcome sexual advances in the workplace, complained about that conduct to her employer, and lost her job.” According to Ms. Vasquez, a co-worker sent her unsolicited sexual photographs. Ms. Vasquez promptly reported the photographs to her supervisor and the employer began an investigation. The co-worker, however, learned of the investigation and provided false documents to the employer that Ms. Vasquez consented to and solicited a sexual relationship. The employer then terminated Ms. Vasquez claiming she sexually harassed the co-worker even though she offered to produce information to rebut the co-worker’s claims.

The district court dismissed Ms. Vasquez’s claims. It held the employer could not have engaged in retaliation because it could not be responsible for the retaliatory intent of a low-level employee with no decision making authority. The Second Circuit, however, disagreed and held “that an employee’s retaliatory intent may be imputed to an employer where, as alleged here, the employer’s own negligence gives effect to the employee’s retaliatory animus and causes the victim to suffer an adverse employment decision.”

The Court relied on the “cat’s paw” theory of employment discrimination to reverse the dismissal of Ms. Vasquez’s claims. Typically, the “cat’s paw” has been applied to hold employers liable for a supervisor’s discriminatory or retaliatory intent. But, in this case, the Second Circuit extended this liability to include a low-level employee’s discriminatory/retaliatory intent:” we hold that an employer may be held liable for an employee’s animus under a ‘cat’s paw’ theory, regardless of the employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action.”

The Second Circuit’s opinion seemingly expands employer’s liability for the discriminatory and retaliatory actions of its employees, even if those employees are low-level employees without any decision making authority. If you believe a low-level employee may have acted with discriminatory or retaliatory intent and have questions about potential employer liability, please contact us.

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Posted in employment, General

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