The delegation of authority by employers and reliance upon the multi-layered levels of management has complicated the American workplace in more ways than one. Certainly the head boss or bosses can’t be everywhere every minute of the day, however, what’s a boss to do when there are conflicting complaints by non-management-level employees and management has reason to suspect one of the complainers was engaging in unlawful harassment? Does crediting one over the other and taking disciplinary action open the door to legal liability? Most employers may not realize that such a scenario could invoke the “Cat’s Paw” theory of liability.
As the late Justice Scalia wrote in the benchmark U.S. Supreme Court case Staub v. Proctor Hospital in 2011, “[t]he term ‘cat’s paw’ derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law … in 1990. In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.” Id. at 415 fn. 1. In the context of employment law, the fable is used to describe an individual lacking decisionmaking ability who plays the role of the monkey and who manipulates or influences an otherwise unknowing decisionmaker (the cat) into acting upon the employee’s unlawful bias. In Staub, the U.S. Supreme Court resolved a split among the Circuit Courts and concluded that if a supervisor performs an act motivated by discriminatory animus with the intent to cause an adverse employment action, and if that act is indeed a proximate cause of an adverse employment action ultimately taken, then the employer is liable for that supervisor’s “bad acts.” The Court nevertheless explicitly declined to resolve what the legal implications would have been had the “monkey” been a mere co-worker as opposed to a supervisor.
In 2014 and 2016, however, the First and Second Circuits, respectively, answered the question of liability when the “monkey” is a co-worker left open by the U.S. Supreme Court. Relying on principles of agency law, these Circuit Courts both held that such principles may impose liability upon employers under a “Cat’s Paw” theory even when co-workers are the ones engaging in unlawful discrimination. This course, presented by Casey Wolnowski of Phillips & Associates, PLLC, reviews “Cat’s Paw” liability with a focus on the scenario of when the “bad actor” is a non- management-level co-worker. This presentation will also analyze the present state of the law in this area and the hurdles both employees and employers face in litigating such a case.
This course is pre-approved for CLE credit in the following states. If your state is not listed, contact support for more information on how to receive credit
Casey Wolnowski began practicing in civil rights and employment law in 2014. Prior to that, Mr. Wolnowski served in the chambers of Hon. Anita R. Florio, an associate justice for the New York State Supreme Court, Appellate Division, Second Department. He worked there for four and one-half years and held the position of “Senior Principal Law Clerk” from September 2010 until Justice Florio’s retirement from the bench in December 2012. During his tenure, he worked on over 2,000 appeals, many involving labor & employment matters. In 2013, he worked in the chambers of Hon. Sandra L. Townes in the U.S. District Court for the Eastern District of New York.
In the Summer of 2016, Mr. Wolnowski obtained a $275,000 jury verdict in the case of Fisher v. Mermaid Manor Home for Adults (E.D.N.Y. 14 cv 3461) before the U.S. District Court for the Eastern District of New York, as well as successfully argued the case of Vasquez v. Empress Ambulance Service (2d Cir. 15-3239) before the U.S. Court of Appeals for the Second Circuit. Regarding the latter, in an Opinion authored by Hon. Guido Calabresi, the Court addressed three first impression issues concerning “Cat’s Paw” liability, finding in the employee’s favor on each.
Excellent lecturer. Very knowledgeable.
Clear, concise presentation
Very well presented
The presenter was clearly experienced and knowledgeable in this area and it made the course more interesting.
I found the course very interesting. Every attorney who has supervisory authority should view this.
Very Informative Course
Outstanding. One of the best presentations I have taken on Lawline.
Thought the presentation was interesting and informative. Great job!
Well done a good job sensitizing me to the area
very good class
Excellent and very practical to my area of practice. Seen the issue come up peripherally, but hadn't really studied the details. Program was very helpful.
Nice job with the presentation
Very informative and great presentation.
I love the speaker; he is knowledgeable and entertaining.
Very well done.
nice job- very thorough
Interesting. In depth look into the topic.
very clear and interesting
Casey gave an A+ presentation and explained the law clearly and cogently. Thanks Casey!
Well-organized, clear, and thorough. A very good presentation.
Very useful information
Cogent, precise, well-organized, thanks!
This program gallops along without confusing the listener new to or refreshing an understanding of the matter. A darn good way to pass an hour’s time. The speaker clearly possesses a knack for legal verisimilitude and demonstrates a fluent understanding of employer liability and the "Cat’s Paw" theory.
Great speaker! Made the topic interesting. Nicely paced, covered interesting cases.
Organized and thorough explanation of the theory. Very practical and applicable to practice.
Really thorough and detailed. Highly recommend. One of the best Lawline presentations I've watched, and most are good.
Very knowledgeable speaker. I enjoyed this seminar.
Wish I'd taken this before litigating one of these a few years ago! Great & compact summary.