Fedweek Legal

The U.S. Court of Appeals for the Tenth Circuit recently reversed a lower court’s dismissal (on summary judgment) of a race discrimination lawsuit brought by the EEOC against Coca-Cola Bottling Company of Los Angeles (BCI). EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, No. 04-2220 (10th Cir. June 7, 2006).

The EEOC had alleged that BCI illegally discriminated against an African-American employee when it fired him. The lower court dismissed the case because the “decision maker” in the case did not know the employee’s race, and thus, could not have discriminated against him. The Tenth Circuit reversed the lower court, after discussing what is known as the “cat’s paw” and “rubber stamp” doctrines. A “cat’s paw” is a person used by another as a dupe or tool. In a discrimination lawsuit setting, it refers to a situation in which a biased subordinate, who lacks decision making power, uses the formal decision maker in a deliberate scheme to trigger a discriminatory employment action. The “rubber stamp” doctrine refers to a situation in which a decision maker gives perfunctory approval for an adverse employment action explicitly recommended by a biased subordinate.


In making the decision to terminate the employee in this case, the court noted that the decision maker relied on information provided by the employee’s immediate supervisor, who knew the employee’s race, had a history of treating black employees unfavorably, made disparaging racial remarks in the workplace, and did not treat a white employee similarly for the same alleged misconduct. The court also noted that allowing such a claim has the effect of encouraging employers to verify information and to review recommendations before taking adverse employment actions against members of protected groups, particularly, if, as the court held, an employer can escape liability by performing an independent investigation.

The Tenth Circuit held that most courts have endorsed some version of the cat’s paw, or rubber stamp doctrine, and soundly disagreed with the Fourth Circuit which has held that an employer cannot be held liable even if a biased subordinate exercises “substantial influence” or plays a “significant” role in the employment decision. In this view, the court noted, a decision maker must be so completely beholden to the subordinate “that the subordinate is the actual decision maker.” The Fourth Circuit’s standard undermines the deterrent effect of subordinate bias claims, allowing employers to escape liability even when a subordinate’s discrimination is the sole cause of an adverse employment action. The Seventh Circuit has also rejected the Fourth Circuit’s approach as “inconsistent with the normal analysis of causal issues in tort litigation.”

Even the courts that endorse one or more theories of subordinate bias liability are divided as to the level of control a biased subordinate must exert over the employment decision. Given this divide, it is likely this issue will, at some point, need to be addressed by the Supreme Court.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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