Last month, the Second Circuit ruled in Vasquez v. Empress Ambulance Serv., Inc. that an employer can be liable for the retaliatory actions of a low-level employee with no decision-making capability if "the employer's own negligence gives effect to the employee's retaliatory animus and causes the victim to suffer an adverse employment decision." Reversing a decision by the Southern District of New York, the court ruled that Title VII retaliation claims may rely on the "cat's paw" theory initially fashioned in the Seventh Circuit, which holds that a non-supervisory employee's actions can be imputed to an employer if the employer negligently assists the retaliatory action.

The case involved unwanted romantic advances by one low-level employee on another. When the recipient complained, the employee making advances fabricated evidence portraying the complaining employee as the person making romantic advances. The complaining employee offered contradictory evidence when confronted with the fabricated evidence, but her supervisors refused to consider it and fired her. The Second Circuit's decision rested on its view that the employer was negligent when it relied upon the fabricated evidence without further investigation.

The court was careful not to rule that employers are liable for all illegal retaliations committed by low-level employees, only retaliations in which an employer's management negligently becomes the conduit for the retaliating employee's plan. With this case, the Second Circuit joins the Third, Fifth, Sixth, Seventh, and Eighth Circuits in allowing Title VII retaliation cases to proceed under the "cat's paw" theory.