Working Together

Most sexual harassment policies include a procedure to investigate complaints, often specifying that the investigation will be timely and thorough, and may include interviews with the employees involved, witnesses, and anyone else with relevant knowledge. A recent decision from the U. S. Court of Appeals for the Second Circuit, whose decisions govern the Connecticut federal courts, illustrates the possible consequences of failing to conduct a thorough investigation of a sexual harassment complaint.

In the case of Vasquez v. Empress Ambulance Service, Inc., the Court of Appeals applied what is known as the “cat’s paw” doctrine,  by which an employer can be held liable for discrimination in the form of retaliation against an employee by a co-worker, even when intentional discrimination would otherwise not be imputed to the employer. This occurs when an employee is fired by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive.  The plaintiff in the Vasquez case complained to her supervisors of harassment by a co-worker, but the co-worker learned of the complaint and manipulated his smartphone to make it appear that the plaintiff had engaged in “sexting” with him and had sent him explicit photographs.  He then accused the plaintiff of harassing him.  The company accepted his accusations and the concocted “proof,” refused to consider contrary evidence offered by Ms. Vasquez, and fired her.

The trial court dismissed the plaintiff’s lawsuit because there was no evidence that the company’s supervisors, who were the actual decision-makers, had any intent to harass or retaliate against the plaintiff.  But the Court of Appeals decided that the trial court had missed the point. Although the cat’s paw doctrine had previously been applied only to supervisors, the Court ruled that by neglecting to do its own independent investigation, the company had negligently allowed itself to be manipulated by the conniving co-worker,  and under the cat’s paw doctrine, the company became liable for the co-worker’s intentional act of retaliation.

Investigations of sexual harassment complaints are obviously very sensitive, requiring immediate attention and consideration of the rights of both the accuser and the accused, as well as other employees who may be caught up in the situation.  But as the Vasquez case shows, it is important to be thorough and objective; the consequences of a superficial investigation can be severe.