Thursday, January 22, 2009
Stephen Befort (Minnesota) and Alison Olig (Best & Flanagan) have just posted on SSRN their article Within the Grasp of the Cat's Paw: Delineating the Scope of Subordinate Bias Liability Under Federal Antidiscrimination Statutes, 60 S.C. L. Rev. ___ (2009). Here's the abstract:
This article proposes a new analytical framework for determining the reach of subordinate bias liability under antidiscrimination statutes. The current jurisprudence on this topic is in a state of disarray. A majority of federal circuit courts have adopted a relatively lenient standard which imposes liability whenever a biased subordinate influences an adverse action made by an ultimate decision-maker. Meanwhile the Fourth Circuit strictly limits liability to the situation where the biased subordinate is the de facto actual or principal decision-maker, and two other circuits adopt intermediate approaches that focus more closely on causation and on whether the employer has undertaken an independent investigation into the underlying circumstances. Rather than endorsing any of these existing standards, we propose a new test that draws on the various strengths of the current formulations. We believe that a plaintiff should be recognized as making out a prima facie case of subordinate bias liability by showing that a supervisor or other employee with delegated authority influences an adverse employment action to the extent that discrimination was a motivating factor in that outcome. Once such a showing is made, an employer should be liable unless it can establish the existence of either of two affirmative defenses. First, borrowing from sexual harassment jurisprudence, an employer should not be liable where it has taken reasonable measures to prevent and correct such bias, such as by the implementation of an anti-bias policy, and the plaintiff unreasonably has failed to use the opportunities provided. Alternatively, where the plaintiff has utilized such a policy or where no policy exists, an employer should be able to avoid liability only if it has dissipated the taint of subordinate bias by undertaking a fair and independent investigation into the circumstances underlying the contemplated employment action. We believe that this new test appropriately would encourage employers to protect themselves by preventing discrimination in the workplace while still providing plaintiffs with a reasonable opportunity to obtain redress for such discrimination that nonetheless may occur.