The Second Circuit has expanded a theory of liability that can be asserted against employers. Previously, the Second Circuit had not ruled on whether an employer can be held liable for the actions of a lower-level employee with a discriminatory motive who manipulates an unwitting manager or employer into engaging in an adverse employment action. In Vazquez v. Empress Ambulance Service, Ms. Vazquez accused a co-worker of sexual harassment and outlined in detail obscene and blatant actions taken by the co-worker that constituted sexual harassment. The employer commenced a swift investigation, during which the accused co-worker produced evidence — that he had fabricated and manipulated — to prove that the complaining employee had engaged in sexual harassment toward him. The accused co-worker manipulated a few text messages to make them appear as though they were from the victim and that she was engaged in a consensual relationship with him. The employer did not give Ms. Vazquez the opportunity to explain or refute the evidence produced by the co-worker, and in fact refused to show her part of the evidence. Instead, both employees were fired, and Ms. Vazquez commenced a lawsuit alleging she was terminated in retaliation for complaining about the harassment.

The employer moved to dismiss Ms. Vazquez’ claim for failure to state a claim on the basis that the employer could not be held liable for the misconduct of a lower-level employee, and that it had no knowledge that the evidence was not legitimate. The Second Circuit reversed the decision of the lower court and reinstated the claim. The court noted that the plaintiff’s theory was based upon the “cat’s paw” metaphor, which 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 who intended to bring about the adverse employment action. The employer moved swiftly as required, but did not conduct a thorough investigation. The court noted that an employer can be held “liable under Title VII when, through its own negligence, the employer gives effect to the retaliatory intent of one of its-even low-level-employees.” The court further noted that an employer should be liable if it fires a victim based upon complaints it knew, or reasonably should have known, were the product of discriminatory animus.

This case again highlights the need for thorough and complete investigations into allegations of harassment and discrimination. The investigator needs to obtain a full picture by carefully scrutinizing the potential motives of the witnesses he or she is interviewing and the accuracy of documents that are being provided to him or her, since the employer could unwillingly be the subject of liability for the actions of lower-level employees who have discriminatory motives. Our attorneys are experienced in conducting investigations and providing guidance to employers handling allegations of harassment or discrimination. 

Should you have any questions about how this could impact your business, please contact: 

• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Kristin Klein Wheaton (716.710.5805; kwheaton@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Employment and Labor Practice Group. 

October 6, 2016