Workplace Investigations: How Important Are They?

“Cat’s Paw” Liability
Employer Liability for Employee Discriminatory Conduct
 
As employers have come to understand, hiding one’s head in the sand is not a viable strategy for dealing with complaints of sexual harassment or other employee misconduct.  And if any doubt remained, a U.S. Second Circuit Court of Appeals decision recently put a claw in it.  Using the so-called “cat’s paw” theory of liability, the Court in Vasquez v. Empress Ambulance Service determined that if an employer, without undertaking a reasonable investigation, takes adverse action against an employee based on its negligent reliance on misinformation provided by a co-worker, the employer can be held liable for the co-worker’s discriminatory intent – irrespective of the employer’s intent.  The fact that the employer lacked discriminatory intent and/or that the co-worker had no supervisory or decision-making authority over the employee is irrelevant under a “cat’s paw” analysis.
 
Employers are required to ensure that sexual harassment and other complaints of discriminatory conduct are subject to prompt, thorough and impartial investigation.  In order to meet this standard, employers may be well-served by retaining a trained, independent workplace investigator.
 
Contact Attorney Jeff Buebendorf for more information on Workplace Investigations and the many other services we offer employers.