August 16, 2019

An employer that negligently or recklessly punishes an employee as a proximate result of a discrimination complaint filed by a third party may be liable under Title VII


In this appeal from a federal district court's adverse decision flowing from a student's allegation of sexual misconduct by a member of the school's faculty [Plaintiff], the U.S. Circuit Court of Appeals, 2nd Circuit, found that the Plaintiff in this action had alleged facts from which it may plausibly be inferred that the employer [University] served as a conduit for the student’s discriminatory intent and that this discriminatory intent may be imputed to the University.

The Circuit Court opined:

"(1) Where a university (a) takes an adverse employment action against an employee, (b) in response to allegations of sexual misconduct, (c) following a clearly irregular investigative or (d) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex, these circumstances support a prima facie case of sex discrimination; [and]

"(2) When contesting an inference of bias based on procedural irregularity, an employer cannot justify its abandonment of promised procedural protections by recharacterizing specific accusations in more generic terms; [and]

"(3) Where (a) a student files a complaint against a university employee, (b) the student is motivated, at least in part, by invidious discrimination, (c) the student intends that the employee suffer an adverse employment action as a result, and (d) the university negligently or recklessly punishes the employee as a proximate result of that complaint, the university may be liable under Title VII."

Accordingly the Circuit Court held that the Plaintiff’s amended complaint stated a claim for unlawful sex discrimination by the University and vacated the district court's judgment. The court then "remanded the cause to the District Court for further proceedings consistent with this opinion."

In so doing the Circuit Court also suggested that the district court “consider Plaintiff's 'cat's paw' theory" with respect to the University's liability. 

This theory, said the 2nd Circuit Court, was derived "from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law" by  Seventh U.S. Circuit Court of Appeals Judge Richard Posner in his 1990 decision in Shager v Upjohn Co., 913 F.2d 398. In this instance the 2nd Circuit Court commented that the district court "should consider [Plaintiff’s] allegations under such a theory as ... [a]t its core, a 'cat’s paw' case simply reflects a slight variation on the standard principles of vicarious liability."

The 2nd Circuit Court further noted that "[i]n the Title VII context, it is well-settled that employers may be held vicariously liable for the conduct of their agents" if a plaintiff establishes "(1) that the employer’s agent (a) was motivated by the requisite discriminatory intent, and (b) effected the relevant adverse employment action; and (2) that the agent’s conduct is imputable to the employer under general agency principles."

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/995fa96b-8187-4ec9-9079-2c17cf2ae632/1/doc/18-3089_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/995fa96b-8187-4ec9-9079-2c17cf2ae632/1/hilite/

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