Don’t Fire the Sexual Harassment Victim 14:22, September 14, 2016

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Don’t Fire the Sexual Harassment Victim

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An employer found out that it could be liable for retaliation because it acted negligently when it fired an employee solely on the basis of the accusations of a biased coworker who had been accused of sexual harassment.

Andrea Vasquez was an emergency medical technician (EMT) on an ambulance crew for Empress Ambulance Service, Inc. Tyrell Gray, a dispatcher, made constant romantic overtures to her, asking her out on dates and repeatedly putting his arm around her. Around midnight one night, while she was out on her shift, Vasquez received a sexually graphic image from Gray. She didn’t respond to the message or to a follow-up text message from Gray.

A supervisor told her to write and send a formal complaint. Gray saw her doing this and said “You’re reporting me, right?”

Gray asked another EMT to lie and tell their supervisors that Vasquez and Gray had been in a romantic relationship, but the EMT refused. Gray then manipulated a “racy” message he had received from another woman, to make it look like Vasquez had sent him a picture of herself. He took screen shots of parts of the sexting conversation with the other woman, printed them, and presented them to Empress management as evidence that he and Vasquez had been in a relationship.

The next day, when Vasquez met with a union representative and Empress management, the management had already considered Gray’s documents and concluded that Vasquez and Gray were having an inappropriate sexual relationship. Vasquez denied it, offering her own phone as proof, but management declined to examine it. They then fired Vasquez for engaging in sexual harassment.

Vasquez sued, claiming that Empress had wrongfully terminated her in retaliation for her sexual harassment complaint. Empress claimed that only Gray (not Empress) had an intent to retaliate, and that Gray’s retaliation couldn’t be attributed to Empress. Therefore, Empress said, it could not have retaliated against Vasquez.

Employer’s Liability for Subordinate’s Retaliation

The Court disagreed. First, it noted that Vasquez was suing under the “cat’s paw” theory, in which Empress could be liable for retaliation because it negligently relied on Gray’s discriminatory evidence when it fired Vasquez. In 2011 the US Supreme Court held in Staub v. Proctor Hospital that an employer can be “liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.”

In Staub the Supreme Court dealt with a supervisor’s discriminatory intent. But in this case, the Court held that an employer may be responsible if it negligently allows any coworker harboring a discriminatory intent to induce an employee’s termination. The Court stressed that employers are not liable simply because they act on information provided by a biased coworker. Instead, an employer will be liable if it acts negligently with respect to the information provided by the discriminating employee, thereby giving that biased employee “an outsize role” in the employer’s employment decision.

The Court pointed out several instances showing that Empress acted negligently.

The Court found that Empress should have investigated Vasquez’s sexual harassment claims more seriously, instead of listening only to Gray. Empress should have treated Gray’s accusation with skepticism, since he knew he was being accused and had an obvious reason to lie. It also seemed strange to the Court that Gray should “just happen to have on hand” printed copies of text messages. Finally, Empress should have allowed Vasquez to present her phone and other evidence. See Vasquez v. Empress Ambulance Service, Inc.

Don’t Be a Cat’s Paw

In Staub, former Supreme Court Justice Antonin Scalia described a cat’s paw:

The 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 by Posner 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. A coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king’s behalf and receive no reward.

Employers should strive not to be a cat’s paw. In this case we can see that the employer made a decision after hearing only from Gray. It refused to examine evidence offered by Vasquez, and it did no investigation on its own. And even though it relied solely on Gray’s “evidence,” it didn’t examine that evidence in an objective way. The US Equal Employment Opportunity Commission (EEOC) published guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors. In its Questions and Answers on the guidance, the EEOC said: “An employer should conduct a prompt, thorough, and impartial investigation. The alleged harasser should not have any direct or indirect control over the investigation.” The same principles apply when the harasser is a coworker instead of a supervisor.

Sexual harassment remains a significant problem, and employers should be careful when they’re investigating claims. Employees need to know that their employer will take them seriously when they report harassment. And employers need to recognize unethical behavior on the part of employees who are the subject of complaints. LawRoom offers online training programs to help employees recognize the importance of identifying and managing behaviors and attitudes that can lead to sexual harassment and unethical conduct. You can also check out this white paper on ethics.

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Christine Day
Christine Day is a legal editor at EverFi. She writes about employment law issues and tracks case law and legislative and regulatory updates. Before joining EverFi she worked in legal publishing, researching and writing about tax law, business law, and employment law. She earned her JD from the University of San Diego Law School and her BA from the University of Southern California.

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