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Cat's Paw Theory of Discrimination Adopted by the Second Circuit

Published:  August 31, 2016

Employers in Connecticut, Vermont, and New York beware: just this week, the federal appeals court which covers your states adopted the theory of cat's paw discrimination in the context of Title VII claims. Employers in other states should be equally concerned about this decision: several federal courts of appeal have similarly adopted the theory, and others will likely follow.

What is the cat's paw theory? To understand the theory, it is helpful to know where the term cat's paw arises from. Cat's paw is in reference to an old fable. In that fable, a dubious monkey convinces an unsuspecting cat to snatch chestnuts out of a fire, which the monkey then eats while leaving the cat with a burnt paw.

In applying the fable to employment law, cat's paw refers to a situation where an unsuspecting supervisor is duped into taking an adverse action against an employee by a subordinate employee who harbors a discriminatory motive.  Under the cat's paw theory of discrimination, an employer who disciplines or fires an employee for legitimate reasons can be on the hook for discrimination if the information the decision-maker acts on was provided for discriminatory reasons.

In the case at hand, a seemingly very clever monkey attempted to mastermind the events that gave rise to his co-worker's firing and ultimately the Second Circuit's decision. In this case, a male employee (a/k/a the monkey in the context of the fable) texted naked pictures of himself to a female employee. When his overtures went unreciprocated, the male employee immediately went on the offense: he reported the female employee for sexual harassment to Human Resources and submitted text messages he had doctored as the proof. Indeed, the male employee took text messages and inappropriate pictures (obscuring the female's face), which he had actually exchanged with another female, to HR claiming they were from the female employee. While the male employee beat her to the punch, the female employee reported the male employee for sexual harassment to HR. By that time, though, HR had launched an investigation into her and had examined the male employee's evidence. Without taking her allegations into consideration, the company concluded that the female employee had harassed the male employee, and fired her for it. She then sued the company for discrimination.

In applying the cat's paw theory of discrimination to the situation, the court concluded that an employer can be held liable for discrimination if it is negligent in giving weight to the tainted employee's version of events. In this case, the court found the employer to be negligent by not considering the female employee's contrary evidence (indeed, the employer essentially dismissed her version of events).  

The cat's paw theory of discrimination underscores the importance of conducting thorough workplace investigations. The court's decision makes it clear that, in order to pass muster, investigations must consider all claims and examine all of the information and documentation before any decision is rendered. 

Because of the importance in honing investigation skills, Royal will be conducting a how-to conduct an investigation seminar this October. Stay tuned for announcements of this seminar. In the meantime, if you have any questions about this decision, or on conducting a workplace investigation, please contact any of the Royal attorneys.