The “Human Resources” or “HR” department of an organization typically performs various employee management functions, such as overseeing compliance with labor law and employment standards, administration of employee benefits, organizing employee files with documents for future reference, recruitment, and employee onboarding and offboarding. At their best, HR departments provide critical support to both employers and employees and facilitate a mutually satisfying relationship between and for both.
Unfortunately, however, HR processes can be abused. Take the facts alleged in Vasquez v. Empress Ambulance Service, Inc., 835 F.3d 267 (2d Cir. 2016), a case decided by the Second Circuit Court of Appeals in 2016. Andrea Vasquez worked as an emergency medical technician for an ambulance company. After receiving unsolicited sexual photographs from Tyrell Gray, a co-worker, Ms. Vasquez did exactly what she was supposed to do: she promptly informed her supervisor and filed a formal complaint of sexual harassment with HR. Within a few hours, however, Mr. Gray learned of Ms. Vasquez’s complaint against him. He provided HR with false documents purporting to show that Ms. Vasquez had solicited an inappropriate sexual relationship with him. Relying on those documents, a member of HR told Ms. Vasquez that HR had heard from Mr. Gray about the matter and that HR knew the truth. In a cruelly ironic twist, Ms. Vasquez was fired on the ground that she had violated the company’s sexual harassment policy. See id. at 270–71.
Title VII of the Civil Rights Act of 1964 prohibits employers from subjecting their employees to discrimination on the basis of race, color, religion, sex, or national origin, 42 U.S.C. § 2000e-2(a)(1), and retaliation for opposing any practice the employee reasonably believes violates the statute, id. § 2000e-3(a); E.E.O.C. v. Rite Way Serv., Inc., 819 F.3d 235, 239–40 (5th Cir. 2016). But in the situation in Vasquez described above, it was Ms. Vasquez’s co-worker—not her employer—who intentionally orchestrated the retaliatory scheme that led to Ms. Vazquez’s unfair firing.
Given that the chain of events that led to Ms. Vasquez’s termination began with the actions of her co-worker and not a supervisor with decision-making authority, does Ms. Vasquez have a viable Title VII claim?
Enter “cat’s paw” liability! The phrase derives from an Aesop fable, later put into verse by Jean de La Fontaine, in which a devious monkey persuades a naïve cat into pulling roasting chestnuts out of a fire for their mutual satisfaction. Vasquez, 835 F.3d at 271–72. But after the duplicitous monkey devours the chestnuts quickly, the deceived cat is left with a burnt paw and no chestnuts for its efforts. Id. at 272. “[I]njected into United States employment discrimination law by [Judge Richard] Posner in 1990,” Staub v. Proctor Hosp., 562 U.S. 411, 415 n.1 (2011), the “cat’s paw” metaphor now “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 Int’l Corp., 673 F.3d 625, 628 (7th Cir. 2012).
Applying the “cat’s paw” theory to the facts alleged in Andrea Vasquez’s case, the Second Circuit held that “when an employer in effect adopts an employee’s unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision,” the employee’s motivation can “be imputed to the employer and used to support a claim under Title VII.” 835 F.3d at 275. Accordingly, the court ruled in Ms. Vasquez’s favor and held that her lawsuit against her employer could proceed. See id. at 276. In doing so, the court observed that the “cat’s paw” theory of liability has been endorsed by the U.S. Supreme Court and has been “overwhelmingly adopted” by the other federal circuit courts in Title VII retaliation cases. See id. at 272 (citing Staub, 562 U.S. at 417; Zamora v. City of Houston, 798 F.3d 326, 332–33 (5th Cir. 2015); EEOC v. New Breed Logistics, 783 F.3d 1057, 1069–70 (6th Cir. 2015); Bennett v. Riceland Foods, Inc., 721 F.3d 546, 551–52 (8th Cir. 2013); Hicks v. Forest Preserve Dist. of Cook Cty., Ill., 677 F.3d 781, 789–90 (7th Cir. 2012); McKenna v. City of Philadelphia, 649 F.3d 171, 180 (3d Cir. 2011)).
If you have experienced discrimination or retaliation based on a biased HR process, you should consult with an attorney to determine what your legal options are. Sanford Heisler Sharp has experienced employment discrimination and retaliation lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.