AuthorLena, Kendra

The "cat's paw" doctrine derives its name from the seventeenth century fable about a deceitful monkey stealing chestnuts from a gullible cat. (1) Adopted to some degree in most federal circuit courts of appeals, this term is used in modern employment discrimination law to describe a legal theory whereby an employer may be held vicariously liable for the discriminatory bias of its subordinate. (2) The Supreme Court of the United States recognized that employers may be held vicariously liable for a supervisor's discriminatory intent which causes adverse employment action against an employee; however, a circuit split still exists for the causation standard over the adverse employment decision that is necessary for an employee's impermissible bias to be imputed onto the employer. 3 In Menaker v. Hofstra University (4), the Second Circuit reviewed a district court judgment, which dismissed an employee's complaint that a private university was vicariously liable for discrimination after the university terminated the employee based on a student's sexual harassment allegations. The Second Circuit vacated the district court's ruling, remanded the case, and held that the discriminatory intent of a non-employee may be imputed to the employer if the employee presents a prima facia case that an adverse employment action was discriminatory, and all procedural requirements have been fulfilled. (5)

On January 15, 2016, Jeffrey Menaker joined Hofstra University as the Director of Tennis and head coach of the men's and women's varsity tennis teams. (6) Michal Kaplan, a member of the women's varsity tennis team and a student at the university, approached Menaker, asked him about her scholarship, and stated that she received an oral promise from the previous head coach that she would receive a significant increase in scholarship money if she continued on the team. (7) Menaker denied knowing anything about this oral promise, but offered to increase her scholarship during her junior and senior years. (8) In July of 2016, Kaplan's lawyer sent Hofstra a letter alleging Menaker subjected Kaplan to "unwanted and unwarranted sexual harassment" and "quid pro quo threats [that] were severe, pervasive, hostile, and disgusting." (9) Menaker denied the accusations in Kaplan's letter during a meeting with university personnel and provided copies of all communications with Kaplan to refute the claims against him. (10) Although Menaker listed several names to the committee of potential witnesses who would provide information in the investigation, Hofstra never contacted them. (11) Menaker was subsequently fired for "unprofessional conduct" on September 7, 2016, and after submitting a claim of sex-based discrimination to the United States Equal Opportunity Commission, he filed suit against Hofstra on September 22, 2017, which alleged violations of Title VII of the Civil Rights Act, New York State's Human Rights Law, and the New York City Human Rights Law. (12)

The United States District Court for the Eastern District of New York granted Hofstra's Rule 12(b)(6) motion and concluded that Menaker failed to plead sufficient facts supporting a plausible inference that his sex played a role in his termination. (13) The United States Court of Appeals for the Second Circuit vacated the judgment and remanded the case, reasoning that the court's factual findings were contrary to Doe v. Columbia University, which outlined the pleading standard required to establish a prima facie case of sex discrimination against a university. (14) In his complaint, Menaker also alleged that the discriminatory motivation and intent of Kaplan, a non-employee of the University, should be imputed to Hofstra. (15) The Second Circuit held that under the cat's paw theory of liability, Kaplan's discriminatory intent could indeed be imputed to Hofstra, and that the University may therefore be liable for discrimination through its implementation of her intent in its adverse employment action against Menaker. (16) The court held that Menaker adequately stated a claim of sex discrimination, and in doing so, effectively expanded the interpretation of the cat's paw doctrine in the Second Circuit to include imputing non-employees' discriminatory intent to the employer in an adverse employment action in violation of Title VII. (17)

The phrase "cat's paw" is derived from a seventeenth century tale in which a deceitful monkey convinces a cat to steal chestnuts so they can eat them together; however, when the gullible cat pulls out the last chestnut, he realizes the monkey already ate all the chestnuts, leaving the cat--that had taken all the risk--with no rewards.18 In 1990, Judge Richard Posner first used the term "cat's paw" in relation to employment discrimination as an analogy for situations in which an employer is held vicariously liable for the discriminatory biases of its employees and subordinates. (19) The United States Supreme Court adopted the term to a limited degree where an adverse employment decision was influenced by a supervisor who possessed a discriminatory or retaliatory intent against an employee; however, the Court declined to consider whether the doctrine could be applied to decisions influenced by a co-worker. (20) There is no consensus among circuits in applying the cat's paw theory of liability to the discriminatory intent of a co-worker or of a non-employee, which influences the employer's decision in the adverse employment action. (21)

Title VII defines a supervisor in vicarious liability cases as an employee "empowered by the employer to take tangible employment actions against the victim." (22) Under agency theory, a master is subject to liability for the torts of his servants committed while acting "within the scope of their employment." (23) This type of vicarious liability permits plaintiffs to successfully bring Title VII discrimination claims against employers, even if employers themselves did not have discriminatory intent under common law agency principles. (24) Title VII of the Civil Rights Act of 1964 states:

It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ... to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect is status as an employee ... to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin.... (25) Title VII seeks to avoid adverse employment actions brought by employees by reducing workplace discrimination and any retaliation that would likely follow for reporting any acts of discrimination. (26) Therefore, in accordance with both agency law and Title VII, an employer is subject to liability for discriminatory animus while acting within the scope of employment, and may even be subject to liability for acts outside the scope of employment if the employer is negligent or reckless in its actions or...

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