Connecticut employees using medical marijuana for certain debilitating medical conditions as allowed under Connecticut law for “qualified users” are protected under state law from being fired or refused employment based solely on their marijuana use. Employers who violate those protections risk being sued for discrimination, according to a recent federal district court decision.

Background

In Noffsinger v. SSC Niantic Operation Company (3:16-cv-01938; D. Conn. Aug. 8, 2017), the federal district court ruled that “qualified users” are protected from criminal prosecution and are not subject to penalty, sanction or being denied any right or privilege under federal laws, such as the Controlled Substances Act (CSA), the Americans with Disabilities Act (ADA) and the Food, Drug and Cosmetic Act (FDCA), because the federal laws do not preempt Connecticut’s Palliative Use of Marijuana Act (PUMA).

PUMA prohibits employers from refusing to hire, fire, penalize, or threaten applicants or employees solely on the basis of being “qualified users” of medical marijuana. PUMA exempts patients, their caregivers and prescribing doctors from state penalties against those who use or distribute marijuana, and it explicitly prohibits discrimination by employers, schools and landlords.

In Noffsinger, Plaintiff was employed as a recreational therapist at Touchpoints, a long term care and rehabilitation provider, and she was recruited for a position as a director of recreational therapy at Bride Brook, a nursing facility. After a phone interview, she was offered the position at Bride Brook and accepted the offer, and she was told to give notice to Touchpoints, which she did to begin working at Bride Brook within a week. Plaintiff scheduled a meeting to complete paperwork and routine pre-employment drug screening for Bride Brook, and at the meeting, she disclosed her being qualified to use marijuana for PTSD under PUMA. The job offer was later rescinded because she tested positive for cannabis; in the meantime, Plaintiff’s position at Touchpoints was filled, so she could not remain employed there.

Litigation

Plaintiff sued for violation of PUMA’s anti-discrimination provisions, common law wrongful rescission of a job offer in violation of public policy and negligent infliction of emotional distress. Defendant filed a Rule 12(b)(6) pre-answer motion to dismiss based on preemption under CSA, ADA, and FDCA. The federal court denied the motion and ruled that PUMA did not conflict with the CSA, ADA or FDCA, because those federal laws are not intended to preempt or supersede state employment discrimination laws. The court concluded that CSA does not make it illegal to employ a marijuana user, and it does not regulate employment practices; the ADA does not regulate non-workplace activity or illegal use of drugs outside the workplace or drug use that does not affect job performance; and the FDCA does not regulate employment and does not apply to PUMA’s prohibitions.

The court’s decision is notable in that it is the first federal decision to determine that the CSA does not preempt a state medical marijuana law’s anti-discrimination provision, and reaches a different result than the District of New Mexico, which concluded that requiring accommodation of medical marijuana use conflicts with the CSA because it would mandate the very conduct the CSA proscribes. The Noffsinger decision supplements a growing number of state court decisions that have upheld employment protections for medical marijuana users contained in other state statutes. These decisions stand in stark contrast to prior state court decisions California, Colorado, Montana, Oregon, and Washington that held that decriminalization laws – i.e., statutes that do not contain express employment protections – do not confer a legal right to smoke marijuana and do not protect medical marijuana users from adverse employment actions based on positive drug tests.

Key Takeaways

Employers may continue to prohibit use of marijuana at the workplace; and qualified users who come to work under the influence, impaired and unable to perform essential job functions are subject to adverse employment decisions. Employers in Connecticut, however, may risk being sued for discrimination for enforcing a drug testing policy against lawful medical marijuana users.  In those cases, employers may have to accommodate off-duty marijuana use, and may take disciplinary action only if the employee is impaired by marijuana at work or while on duty.

It remains unclear how employers can determine whether an employee is under the influence of marijuana at work. Unlike with alcohol, current drug tests do not indicate whether and to what extent an employee is impaired by marijuana. Reliance on observations from employees may be problematic, as witnesses may have differing views as to the level of impairment, and, in any event, observation alone does not indicate the source of impairment. Employers following this “impairment standard” are advised to obtain as many data points as possible before making an adverse employment decision.

All employers – and particularly federal contractors required to comply with the Drug-Free Workplace Act and those who employ a zero-tolerance policy – should review their drug-testing policy to ensure that it: (a) sets clear expectations of employees; (b) provides justifications for the need for drug-testing; and (c) expressly allows for adverse action (including termination or refusal to hire) as a consequence of a positive drug test.

Additionally, employers enforcing zero-tolerance policies should be prepared for future challenges in those states prohibiting discrimination against and/or requiring accommodation of medical marijuana users. Eight other states besides Connecticut have passed similar medical marijuana laws that have express anti-discrimination protections for adverse employment actions: Arizona, Delaware, Illinois, Maine, Nevada, New York, Minnesota and Rhode Island. Those states may require the adjustment or relaxation of a hiring policy to accommodate a medical marijuana user. Additionally, courts in Massachusetts and Rhode Island have permitted employment discrimination lawsuits filed by medical marijuana users to proceed.

Finally, employers should be mindful of their drug policies’ applicability not only to current employees, but also to applicants.

The U.S. Court of Appeals for the Second Circuit recently clarified that the “motivating factor” standard of causation applies to Family and Medical Leave Act (FMLA) retaliation claims, instead of the “but for” causation standard applied in Title VII and ADEA retaliation cases. The “but for” standard is more onerous for the plaintiff, who must demonstrate that discrimination or retaliation was the determining factor for the adverse employment action, not just one reason among others. The less burdensome “motivating factor” causation standard requires the plaintiff to show only that the action was motivated at least in part by discriminatory or retaliatory animus.  In Woods v. START Treatment & Recovery Ctrs., Inc., the Second Circuit vacated and remanded the jury verdict where the district court incorrectly instructed the jury to apply the “but for” causation standard to Plaintiff’s FMLA retaliation claims.  Specifically, the court held that the “motivating factor” standard applies to FMLA retaliation claims actionable under 29 U.S.C. § 2615(a)(1), which prohibits “any employer to interfere with, retrain, or deny the exercise of or the attempt to exercise” rights under the FMLA.

Background

Plaintiff Woods worked as a substance abuse counselor for Defendant START from 2007 until her termination in 2012. Beginning in 2011, Woods received several warning memos and was placed on probation due to poor performance.  During this period, Woods suffered from severe anemia and other conditions for which she requested medical leave under the FMLA.  Woods was hospitalized as a result of her condition in April 2012 and, shortly after returning to work, was terminated from her position as a counselor.  START proffered that Woods’s termination was the result of her demonstrated poor performance for over a year, whereas Woods claimed that she was discharged due to her request for and use of FMLA leave.  During discovery, START pursued questions about Woods’s prior alleged wrongdoing, but Woods refused to answer and invoked the Fifth Amendment.  At trial, the district court instructed the jury that Woods had to show that she would not have been discharged “but for” her use of FMLA leave, and that the jury could presume, based on her invocation of the Fifth Amendment, that Woods would have answered questions about her alleged wrongdoing in the affirmative.  The jury returned a verdict in favor of START on all counts.

The Second Circuit reversed and remanded, finding the district court erred by improperly instructing the jury on the causation standard and by issuing the adverse inference ruling with regard to the Fifth Amendment claim. While other circuits find a basis for FMLA retaliation claims in 29 U.S.C. § 2615(a)(2), the court determined that FMLA retaliation claims are sourced from § 2615(a)(1).  This is a key distinction because the language in § 2615(a)(2) is similar to the Title VII retaliation language discussed in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) and Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), where the Supreme Court determined that the default “but for” causation standard applied.  Relying instead on § 2615(a)(1) as the basis of Woods’s claims, the court adopted the Department of Labor’s regulations requiring the “motivating” or “negative” factor causation standard for FMLA retaliation claims after concluding that Chevron deference required that outcome.  In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), of course, the Supreme Court held that deference should be given to administrative interpretation of statutes, so long as the statute is unclear and the interpretation is reasonable.

On remand, Woods likely will receive a new trial, where she will have to prove only that FMLA retaliation is one “motivating factor,” among others. Therefore, even if START successfully demonstrates that Woods performed poorly throughout the last twelve months of her tenure, or proves that she committed misconduct constituting a terminable offense, START must also show that the Plaintiff’s use of FMLA leave was not considered at all in the decision to terminate.

Implications

Although some district courts, like the District of Massachusetts, have recently held that the “but for” standard applies to FMLA retaliation claims, the recent trend in the Circuit Courts has been the opposite.  With the holding in Woods, the Second Circuit joins the Third Circuit in finding that the “motivating factor” causation standard applies to FMLA retaliation claims.  Thus, in litigation, employers should be prepared, particularly in these jurisdictions, to respond to this lower causation standard by proving that the same decision would have been made regardless of whether FMLA leave was taken.

This decision also should serve as a reminder to employers that, as discipline, discharge, and similar decisions are made, precautions must be taken to ensure that FMLA and other protected characteristics are not being considered in reaching those decisions. Human Resources and/or the legal department should review such decisions for discriminatory and retaliatory animus, and the non-discriminatory and non-retaliatory reasons for the decision should be contemporaneously documented.  Therefore, if the matter reaches litigation, these precautions will help rebut any claim that discrimination or retaliation motivated the adverse action.

The Department of Fair Employment and Housing (DFEH) recently released a brief, nine-page guide for California employers, which was prepared in conjunction with the California Sexual Harassment Task Force.  This guide is intended to assist employers in developing an effective anti-harassment program, including information about how to properly investigate reports of harassment and understand what recourse is available.  The guide addresses all forms of workplace harassment, including harassment based on sex.

Specifically, the guide provides employers with information regarding the particular components for an effective anti-harassment program in the workplace. The DFEH also gives employers step-by-step guidance for how to properly handle harassment complaints and any resulting investigations.  The guide discusses topics such as confidentiality during the investigation, the timeliness of an investigation, and investigator qualifications and training.  In its discussion of proper investigations, the DFEH provides nine “credibility factors” which an investigator may utilize in making a determination. These factors include a party’s motive to lie, any history of dishonesty, the manner of testimony – including hesitant speech and indirect answers – and the party’s demeanor during the investigation.  The guide also addresses what employers should do in unusual situations, such as: what to do when the target of harassment asks an employer not to act, how to investigate anonymous complaints, and how to handle retaliation.  The DFEH emphasizes the employer’s legal obligation to prevent and correct unlawful harassing behavior, and provides information regarding remedial measures. While some of these tips may seem intuitive, this guide is a good refresher for even the savviest of employers.

In conjunction with the guide, the DFEH also released an easy-to-follow brochure and corresponding poster specifically addressing sexual harassment, which employers can provide to their employees, in compliance with California Government Code section 12950(b). The brochure and poster echo many of the same tips as the guide, but focus solely on sexual harassment.  The poster and brochure include an explanation of what constitutes sexual harassment, provide examples of harassing behavior that may occur in the workplace, detail the civil remedies for harassing conduct, and outline an employer’s responsibilities and liability when allegations of sexual harassment are made.

Employers should utilize these DFEH resources when investigating and responding to claims of harassment made in the workplace.

The intersection of employment and marijuana laws has just gotten cloudier, thanks to a recent decision by the Rhode Island Superior Court interpreting that state’s medical marijuana and discrimination laws. In Callaghan v. Darlington Fabrics Corporation, the court broke with the majority of courts in other states in holding that an employer’s enforcement of its neutral drug testing policy to deny employment to an applicant because she held a medical marijuana card violated the anti-discrimination provisions of the state medical marijuana law.

Background

Plaintiff applied for an internship at Darlington, and during an initial meeting, she signed a statement acknowledging she would be required to take a drug test prior to being hired.  At that meeting, Plaintiff disclosed that she had a medical marijuana card.  Several days later, Plaintiff indicated to Darlington’s human resources representative that she was currently using medical marijuana and that as a result she would test positive on the pre-employment drug test.  Darlington informed Plaintiff that it was unable to hire her because she would fail the drug test and thus could not comply with the company’s drug-free workplace policy.

Plaintiff filed a lawsuit alleging Darlington violated the Hawkins-Slater Act (“the Act”), the state’s medical marijuana law, and the Rhode Island Civil Rights Act (“RICRA”). The Hawkins-Slater Act provides that “[n]o school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.”  After concluding that Act provides for a private right of action, the court held that Darlington’s refusal to hire Plaintiff violated the Act’s prohibition against refusing to employ a cardholder.  Citing another provision that the Act should not be construed to require an employer to accommodate “the medical use of marijuana in any workplace,” Darlington contended that Act does not require employers to accommodate medical marijuana use, and that doing so here would create workplace safety concerns.  The court rejected this argument, concluding:

  • The use of the phrase “in any workplace” suggests that statute does require employers to accommodate medical marijuana use outside the workplace.
  • Darlington’s workplace safety argument ignored the language of the Act, which prohibits “any person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice.” In other words, employers can regulate medical marijuana use by prohibiting workers from being under the influence while on duty, rather than refusing to hire medical marijuana users at all.
  • By hiring Plaintiff, Darlington would not be required to make accommodations “as they are defined in the employment discrimination context,” such as restructuring jobs, modifying work schedules, or even modifying the existing drug and alcohol policy (which prohibited the illegal use or possession of drugs on company property, but did not state that a positive drug test would result in the rescission of a job offer or termination of employment).

The court thus granted Plaintiff’s motion for summary judgment on her Hawkins-Slater Act claims.

With respect to Plaintiff’s RICRA claim, the court found that Plaintiff’s status as a medical marijuana cardholder was a signal to Darlington that she could not have obtained the card without a debilitating medical condition that would have caused her to be disabled. Therefore, the Court found that Plaintiff is disabled and that she had stated a claim for disability discrimination under RICRA because Darlington refused to hire her due to her status as a cardholder.  Importantly, the court held that the allegations supported a disparate treatment theory.

Finally, while noting that “Plaintiff’s drug use is legal under Rhode Island law, but illegal under federal law [i.e. the Controlled Substances Act (the CSA”)],” the Court found that the CSA did not preempt the Hawkins-Slater Act or RICRA. According to the court, the CSA’s purpose of “illegal importation, manufacture, distribution and possession and improper use of controlled substances” was quite distant from the “realm of employment and anti-discrimination law.”

Key Takeaways

While this decision likely will be appealed, it certainly adds additional confusion for employers in this unsettled area of the law – particularly those who have and enforce zero-tolerance drug policies. The decision departs from cases in other jurisdictions – such as California, Colorado, Montana, Oregon, and Washington – that have held that employers may take adverse action against medical marijuana users.  The laws in those states, however, merely decriminalize marijuana and, unlike the Rhode Island law, do not provide statutory protections in favor of marijuana users.  In those states in which marijuana use may not form the basis for an adverse employment decision, or in which marijuana use must be accommodated, the Callaghan decision may signal a movement to uphold employment protections for medical marijuana users.

While this issue continues to wend its way through the courts in Rhode Island and elsewhere, employers clearly may continue to prohibit the on-duty use of or impairment by marijuana. Employers operating in states that provide employment protections to marijuana users may consider allowing legal, off-duty use, while taking adverse action against those users that come to work under the influence.

Of course, it remains unclear how employers can determine whether an employee is under the influence of marijuana at work. Unlike with alcohol, current drug tests do not indicate whether and to what extent an employee is impaired by marijuana.  Reliance on observations from employees may be problematic, as witnesses may have differing views as to the level of impairment and, in any event, observation alone does not indicate the source of impairment.  Employers choosing to follow this “impairment standard” are advised to obtain as many data points as possible before making an adverse employment decision.

All employers – and particularly federal contractors required to comply with the Drug-Free Workplace Act and those who employ a zero-tolerance policy – should review their drug-testing policy to ensure that it (a) sets clear expectations of employees; (b) provides justifications for the need for drug-testing; (b) expressly allows for adverse action (including termination or refusal to hire) as a consequence of a positive drug test. Additionally, employers enforcing zero-tolerance policies should be prepared for future challenges in those states prohibiting discrimination against and/or requiring accommodation of medical marijuana users.  Those states may require the adjustment or relaxation of a hiring policy to accommodate a medical marijuana user.

The Callaghan decision also serves as a reminder of the intersection of medical marijuana use and disability.  Here, the court allowed a disability discrimination claim to proceed even though Plaintiff never revealed the nature of her underlying disability because cardholder status and disability were so inextricably linked.

Finally, employers should be mindful of their drug policies’ applicability not only to current employees, but to applicants as well. In Callaghan, the court found the employer in violation of state law before the employee was even offered the internship or had taken the drug test.

Our colleagues Patrick G. Brady and Julie Saker Schlegel, at Epstein Becker Green, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry: “Beyond Joint Employment: Do Companies Aid and Abet Discrimination by Conducting Background Checks on Independent Contractors?

Following is an excerpt:

Ever since the National Labor Relations Board (“NLRB”) issued its August 2015 decision in Browning-Ferris Industries of California, Inc., holding two entities may be joint employers if one exercises either direct or indirect control over the terms and conditions of the other’s employees or reserves the right to do so, the concept of joint employment has generated increased interest from plaintiffs’ attorneys, and increased concern from employers. Questions raised by the New York Court of Appeals in a recent oral argument, however, indicate that employers who engage another company’s workers on an independent contractor basis would be wise to guard against another potential form of liability, for aiding and abetting acts that violate various anti-discrimination statutes, including both the New York State (“NYSHRL”) and New York City Human Rights Laws (“NYCHRL”) and the New Jersey Law Against Discrimination (“NJLAD”).

Read the full post here.

On February 15, 2017, Mayor Muriel Bowser signed the “Fair Credit in Employment Amendment Act of 2016” (“Act”) (D.C. Act A21-0673) previously passed by the D.C. Council. The Act amends the Human Rights Act of 1977 to add “credit information” as a trait protected from discrimination and makes it a discriminatory practice for most employers to directly or indirectly require, request, suggest, or cause an employee (prospective or current) to submit credit information, or use, accept, refer to, or inquire into an employee’s credit information. As discussed in our earlier advisory, the Act will take effect following a 30-day period of congressional review per the District of Columbia Home Rule Act, and publication in the D.C. Register, and shall apply upon inclusion of its fiscal effect in an approved budget and financial plan. The latter may not occur until this summer

In a notable recent court decision highlighting transgender issues and employer sponsored benefit plans, on January 13, 2017, in Baker v. Aetna Life Ins. Co., 2017 U.S. Dist. LEXIS 5665, 2017 WL 131658 (N.D. Tex.), Aetna Life Insurance Co. (“Aetna”) defeated a claim by a transgender employee of L-3 Communications Integrated Systems LP (“L-3”) who alleged that Aetna’s denial of her disability benefits constituted discrimination based on her gender identity. The plaintiff, Charlize Marie Baker (“Baker”), is a participant in L-3’s Employee Retirement Income Security Act (“ERISA”) covered group health plan and short term disability benefits plan (“STD Plan”). Aetna is the third party administrator (“TPA”) of the group health plan and the claim fiduciary and administrator of the STD Plan.

In 2011, Baker began transitioning from male to female, legally changing her name and gender designation on all government issued documents. In 2015, after a consultation with a health care professional who determined that breast implants were medically necessary to treat gender dysphoria, Baker scheduled surgery and sought benefits under the STD Plan to cover her post-surgery recovery. Coverage under the group health plan and benefit claims under the STD Plan were denied. Filing suit against Aetna and L-3, Baker alleged that Aetna and L-3 discriminated against her based on her gender identity in violation of Section 1557 of the Affordable Care Act (the “ACA”), that Aetna denied her benefits under the STD Plan in violation of ERISA, and that Aetna and L-3 violated Title VII by discriminating against her based on her sex.

The court held that there is no controlling precedent that recognizes a cause of action under Section 1557 for discrimination based on gender identity with Baker failing to cite any precedent that recognizes such a cause of action. The court also held that ERISA does not recognize such a claim. Specifically, the court concluded that it is up to Congress to decide whether it wants to create in ERISA a protection that the statute does not expressly provide. Lastly, regarding Baker’s Title VII claims, the court found that Aetna was not an employer of Baker under the “single employer” test or the “hybrid economic realities/common law control” test. However, the court declined to dismiss Baker’s Title VII claims against L-3, finding Baker did sufficiently argue that she was denied employee benefits due to her sex.

Takeaways

While the Northern District of Texas declined to find a cause of action for gender identity discrimination under Section 1557 of the ACA, there are several cases of gender identity or transgender discrimination pending that may further impact the law for these benefit claims under Section 1557. There is little likelihood, however, that a claim of gender identity discrimination will be successful under ERISA. If the ACA is repealed under the Trump administration, Section 1557 will no longer be available and transgendered employees would be limited to claims under Title VII, to the extent that employees are successful in arguing that discrimination on the basis of gender identity constitutes sex discrimination.

Kyler Prescott was a 14 year old transgender boy who was receiving puberty-delaying medication to help him transition.  Shortly before Kyler’s death he had “suicidal ideation” and was taken to Rady Children’s Hospital – San Diego in April 2015.  The hospital has a Gender Management Clinic to provide services to children with gender dysphoria and related issues.  A lawsuit under the ACA’s non-discrimination provision, § 1557, alleges that after admission, despite assurances that he would be referred to with masculine pronouns, hospital employees referred to Kyler as a girl.  The suit claims that the hospital’s actions discriminated against Prescott “resulting in his inability to access necessary services and treatment during a dire medical crisis.” The federal lawsuit, filed in the Southern District of California, further alleges that the use of female references exacerbated his condition and that he thereafter had further difficulties and ultimately committed suicide.

As discussed in our recent October 6, 2016 webinar and in our Client Advisory, HHS’s Office of Civil Rights (“OCR”) final § 1557 regulations explicitly include coverage for gender identity and sexual stereotypes.  They also state that covered entities must “treat individuals consistent with their gender identity . . . .” 45 C.F.R. § 92.206.  This lawsuit appears to be one of the first under § 1557 for gender identity discrimination.  It will surely not be the last.

The suit focuses on claims that nurses and other staff repeatedly used feminine pronouns in referring to Kyler despite assertions in the court pleadings of multiple calls by his mother to the hospital to explain his distress at this alleged conduct.  Hospital staff failed to use Kyler’s preferred pronouns despite hospital records showing Kyler’s legal name and gender change from female to male, according to the suit.

The results of the lawsuit, which at this time are only unproven allegations, will await further court proceedings. What the suit clearly shows, however, is that compliance with § 1557’s notice and policy requirements, effective October 16, was only the beginning of § 1557 compliance needs for covered health care entities.  Among the necessary next steps in compliance with which we are assisting clients are developing appropriate training of all staff interacting with patients and companions on the requirements of § 1557 in providing services, proper categorization of gender in health care records and in-patient references, as well as the need for training and visibility on provider non-discrimination and grievance policies.  This lawsuit dramatically emphasizes the urgency for continuing efforts to achieve full compliance with § 1557 and the OCR final regulations to avoid § 1557 discrimination claims on the expansive grounds covered by § 1557 as interpreted in OCR’s final regulations.

In employment litigation, plaintiffs often rely on the “cat’s paw” doctrine to hold their employers liable for discriminatory or retaliatory animus of a supervisory employee who influenced, but did not make, the ultimate employment decision.  On August 29, 2016, the United States Court of Appeals for the Second Circuit, in Vasquez v. Empress Ambulance Service, Inc., greatly extended the reach of the “cat’s paw,” holding that the doctrine could be applied to hold an employer liable for an adverse employment decision that was influenced by the discriminatory or retaliatory animus of a low-level, non-supervisory co-worker.

The plaintiff, an emergency medical technician employed by the defendant, was terminated within hours of complaining to her supervisors that a male co-worker had sent her a text message containing a graphic, sexual photograph.  Plaintiff alleged that when her male co-worker learned that she had complained, he manipulated his iPhone to make it appear that a conversation containing consensual sexual text banter that he had with another person was a conversation between him and plaintiff and, when questioned by the employer about plaintiff’s allegations, provided printed screen shots of portions of this alleged conversation, telling the employer that he and the plaintiff had been involved in a consensual relationship.  In her lawsuit, plaintiff complained that her employer accepted the co-worker’s tale as true, and rejected her offer to turn over her cell phone for inspection or otherwise refute his claim.  Instead, plaintiff asserted that she was told by her employer that it “kn[e]w the truth,” that she had a sexual relationship with the co-worker, and that her employment was being terminated because she had sexually harassed him.   Plaintiff filed suit, asserting that the employer’s decision to terminate her employment was an act of retaliation in violation of Title VII because she had voiced complaints of sexual harassment.  Relying on the “cat’s paw” doctrine, the plaintiff argued that the employer’s decision to terminate her employment was influenced by false information provided by her male co-worker.  The district court dismissed her complaint, concluding that an employer could not be held liable under the “cat’s paw” doctrine for the discriminatory or retaliatory intent of a non-supervisory co-worker.

On appeal, the Second Circuit disagreed and reinstated plaintiff’s Complaint.  Despite the fact that the male co-worker was a low-level employee without any supervisor authority, the Second Circuit held that the employer’s “own negligence provides an independent basis” to treat the male co-worker as its agent and hold it accountable for his illegitimate intent.  Referencing the allegations that the employer “blindly credited” the male co-worker’s assertions and “obstinately refus[ed] to inspect [plaintiff]’s phone or to review any other evidence proffered by [plaintiff] in refutation,”   the Second Circuit concluded that “an employer may be held liable for an employee’s animus under a ‘cat’s paw’ theory, regardless of the employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action.”

The impact of this decision on health care employers who are often called upon to make employment decisions based on information provided by one employee about another?  Negligence is the key.  Only when the employer effectively adopts the co-worker’s animus by acting negligently with regards to the information provided may the co-worker’s improper motivation be imputed to the employer to support a claim under the cat’s paw doctrine.  Exercise good faith and be thorough in conducting internal investigations.  Do not ignore warning signs.  Consider all evidence offered in making employment decisions.

Our colleague Linda B. Celauro, Senior Counsel at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the health care industry: “Seventh Circuit Panel Finds That Title VII Does Not Cover Sexual Orientation Bias.

Following is an excerpt:

Bound by precedent, on July 28, 2016, a panel of the U.S. Court of Appeals for the Seventh Circuit held that sexual orientation discrimination is not sex discrimination under Title VII of the Civil Rights Act of 1964. The panel thereby affirmed the decision of the U.S. District Court for the Northern District of Indiana dismissing the claim of Kimberly Hively, a part-time adjunct professor at Ivy Tech Community College, that she was denied the opportunity for full-time employment on the basis of her sexual orientation.

The importance of the Seventh Circuit panel’s opinion is not in its precise holding but both (i) the in-depth discussion of Seventh Circuit precedence binding it, the decisions of all of the U.S. Courts of Appeals (except the Eleventh Circuit) that have held similarly, and Congress’s repeated rejection of legislation that would have extended Title VII’s protections to sexual orientation, and (ii) the multifaceted bases for its entreaties to the U.S. Supreme Court and the Congress to extend Title VII’s prohibition against sex discrimination to sexual orientation discrimination.

The Seventh Circuit panel highlighted the following reasons as to why the Supreme Court or Congress must consider extending Title VII’s protections to sexual orientation …

Read the full post here.