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 naďve 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
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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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