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Beware the ‘cat’s paw’ and investigate before you act

The oddly named “cat’s paw” theory (which comes from one of Aesop’s Fables) refers to a scenario where an employer disciplines or fires an employee for what it thinks are legitimate reasons, but does so based on information from a supervisor who had illegal motivations. In most cases, it means the supervisor who reported the worker for discipline was motivated by racial or religious prejudice or a desire to retaliate against the worker for asserting certain rights. In these situations, a court can still hold the employer responsible for unlawful discrimination or retaliation.

A recent decision from a federal appeals court suggests that the cat’s paw theory may be wider-reaching than many of us thought. In that case, a female employee complained to supervisors about an explicit photo sent to her by a co-worker. The co-worker then apparently manipulated text messages on his phone to make it look like the woman had willingly taken part in sexually charged conversations and that he had been a target of sexual harassment. Relying on the co-worker’s so-called evidence, the employer fired her. The employer also apparently conducted no investigation and rebuffed the woman’s offer to display her own phone to rebut the co-worker’s version of events.

She sued the company in federal court claiming she was fired in retaliation for complaining about sexual harassment.

The employer argued that even under the cat’s paw rule it couldn’t be held accountable for the retaliatory intent of the co-worker because he was a low-level co-worker and not a supervisor.

But a federal appeals court disagreed, deciding that in cases where an employer doesn’t conduct a meaningful investigation it’s perfectly fair to hold it responsible. Previously the cat’s paw doctrine was understood as only extending to the discriminatory attitudes of managers and supervisors, so this represents an expansion.  That means employers need to take note: Before making any disciplinary decisions in highly charged situations, contact an employment attorney to help you manage the investigation and decision-making process without running afoul of the law. And if you’re a worker dealing with harassment, discrimination or other unfair treatment in the workplace, call a lawyer to find out what your rights might be.

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