Beware Of Catspaw Liability

September 6, 2016 at 9:16 am Leave a comment

My first blog in September is a fable.

Once upon a time,

There was a smart monkey and his friend the cat. They loved to eat and one day they saw chestnuts burning on an open fire.  The monkey flattered the cat into thinking that only it was quick enough to get   the chestnuts.

She took up the challenge but only by burning her paws.  Meanwhile the monkey ate the chestnuts as quickly as the cat could reach them. And who do you think got into  trouble when their Master spotted the cat’s singed paws?

What does this Aesop fable have to do with anything? For those of you who handle the HR you should remember this as the story behind catspaw liability.  As I look back on what happened over the past week during my hiatus,  a case decided by the Court of Appeals for the Second Circuit, imposing “catspaw” liability on New York employers is the development that may  have the biggest impact on your credit union.

First let’s remember some basics.  Generally, If a supervisor is sexually  harassing  a subordinate then your credit union is automatically liable for the offending conduct.  In contrast   If a worker sexually harasses a coworker by making unwanted sexual advances then you will be held liable to the extent you tolerate the offending conduct.  You need to have a procedures  for the  employee to report the misconduct,  to ensure that your credit union investigates the allegation and that it  takes appropriate action.

Vasquez v. Empress Ambulance Serv., Inc., No. 15-3239-CV, 2016 WL 4501673,  (2d Cir. Aug. 29, 2016) addressed the issue of whether or not an employer could be legally responsible for coworker  harassment where it  had all the proper procedures in place but was manipulated into firing someone based on wrong information? The Court of Appeals for the Second Circuit  held that an employer acting in good faith in response to harassment allegations could still be liable if it was negligent in carrying out its responsibilities.

Ms. Vasquez complained to a supervisor after being repeatedly harassed by a coworker. The last straw came when the harassing coworker followed in the footsteps of Bret Farve and Anthony Weiner and texted her a picture  of his anatomy.

Empress did everything right,  up to a point.  After Vasquez  put a supervisor on notice of the misconduct who told her to file a complaint.  Following a review of the complaint she was assured that this kind of conduct wasn’t tolerated and the information was sent to a committee charged with dealing with harassment claims.

Meanwhile, the harassing coworker came to the realization that he went too far. He manipulated text messages to make it look as if she welcomed his advances and even doctored a photo to make it appear that she was the one sending him sexually suggestive material.  He gave this material to the committee  investigating her claim and when they saw this evidence they fired Ms. Vasquez for lying.  They did this without letting her see the incriminating evidence.  The employer became the catspaw,  manipulated into doing something wrong on behalf of a guilty worker.

The harassed and fired Vasquez sued claiming she was retaliated against for making a sexual harassment claim  As sympathetic as the facts are in the case-no one would deny that if her allegations are true Ms.  Vasquez is a victim- it wasn’t clear that Empress did anything wrong.  In fact the trial court she brought the case to concluded  that employers who make a good faith effort to comply with the law but who make a mistake by drawing the wrong conclusion haven’t  the  law;  after all they don’t tolerate a sexually hostile workplace.

Last week the Court of Appeals reversed this ruling. It held that when,  as a result of its own negligence, an employer gives effect to the retaliatory intent of one of its—even low-level—employees. It can be held responsible for the misconduct.  

This is a holding you should discuss with our HR attorney. Based on this ruling you may very well have to do more to document not only that you have appropriate procedures in place but what steps are taken to confirm the accuracy of your HR investigation. In an age when a desperate employee  can  manipulate  digital evidence in a matter of minutes. this new standard increases the challenges for your HR and legal help.  Hopefully we won’t see the evolution of increasingly stringent investigatory requirements that increase your legal exposure.

The End

Entry filed under: Legal Watch, New York State. Tags: .

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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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