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WASHINGTON � The “cat’s paw” or “rubber stamp” theory of liability in job bias cases comes under scrutiny in the U.S. Supreme Court this month as the justices examine when an employer can be held liable for the unknown bias of a supervisor that has somehow influenced a decision to fire or discipline a worker. In the fable of the cat’s paw, a cunning monkey convinces a cat to use its paw to pull roasting chestnuts out of a fire. As the cat pulls them out, burning its paw, the monkey gobbles them up, leaving none for the duped cat. In job bias litigation under Title VII of the Civil Rights Act of 1964, “cat’s paw,” according to a federal appellate court, “refers to a situation in which a biased subordinate, who lacks decision-making power, uses the formal decision maker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” That’s exactly what happened to Stephen Peters, an African-American employee of BCI Coca-Cola Bottling Co., in Albuquerque, N.M., according to the Equal Employment Opportunity Commission (EEOC). Peters’ supervisor, who is Hispanic, allegedly was racially biased and treated Peters and other African-American merchandisers much less favorably than their white and Hispanic co-workers. The supervisor’s version of a work dispute with Peters allegedly led to the firing of Peters by a BCI human relations manager in another state who was unaware of Peters’ race and the supervisor’s racial bias. BCI now seeks to overturn a ruling by the 10th U.S. Circuit Court of Appeals, which held there was enough evidence for the EEOC’s case against BCI to go to trial. BCI Coca-Cola Bottling Co. v. EEOC, No. 06-314. Division over control Cat’s paw, or the subordinate theory of liability, is well settled, according to employment law experts. But the federal appeals courts have divided over just how much control or influence the biased subordinate must exert over the employment decision in order to hold an employer vicariously liable. In the Supreme Court, BCI has drawn support from the business community, including the U.S. Chamber of Commerce and the Equal Employment Advisory Council. BCI criticizes the 10th Circuit’s liability standard as an “extraordinarily expansive rule” that imposes “too onerous a burden” on employers. “We did not take the most pro-employer stance that is out there in the circuit courts,” said BCI’s high court counsel, E. Todd Presnell of Chattanooga, Tenn.-based Miller & Martin’s Nashville, Tenn. office. “We’re advocating a reasonable standard, fair and balanced for both employer and employee. It encourages employers to adopt anti-discrimination policies and grievance procedures. My company has done that.” But the EEOC, backed by the National Employment Lawyers Association, the Lawyers’ Committee for Civil Rights Under Law and others, contends that BCI’s proposed standard has no footing in Title VII and frustrates the law’s objectives by “cabining the statute’s reach and permitting employer-authorized, discriminatory misconduct to go unremedied.” “Anytime you have a decision influenced by someone who has unlawful motivation, that decision is a tainted decision,” said employment litigator Debra Katz of Washington’s Katz, Marshall & Banks. “If we’re committed to eradicating discrimination in the workplace, you can’t embrace a decision that you know is tainted just because someone who is untainted participated in or was the ultimate decision-maker. If it’s unlawful, it’s unlawful.” Judge Richard Posner of the 7th Circuit, who, according to employment law experts, wrote the decision establishing the cat’s paw theory, said that without it, “the establishment of corporate committees authorized to rubber stamp personnel actions would preclude a finding of willfulness no matter how egregious the actions in question.” Three approaches The circuits are taking essentially three approaches to liability. The 1st and the 5th apply the most pro-employee standard, finding liability when the biased subordinate has exerted influence that led to the challenged employment action. The 4th applies the most pro-employer standard, finding liability only when the subordinate is the “actual decisionmaker.” The 10th Circuit’s standard is viewed by some experts as being in the middle. In BCI, the appellate court held that the relevant inquiry is: “whether the biased subordinate’s discriminatory reports, recommendation, or other actions caused the adverse employment action.” The court also held that an employer can avoid liability “by conducting an independent investigation of the allegations against an employee,” which would break the causation chain. But that theory � attributing to employers the conduct of every employee said to “cause” the employment decision � would be “boundless” in practice, BCI’s Presnell said, because numerous employees influence the decisions of “even moderately large employers, much less large corporations, such as BCI.” In the high court, Presnell argues that an employer is liable when a biased subordinate “possesses sufficient authority or exerts such a level of influence over the formal decisionmaker that she is principally responsible for the decision or is, in effect, the actual decisionmaker” behind the adverse job action. The causal chain is broken, he said, when the formal decision-maker separately evaluates the facts or makes an independent decision � which BCI did. The EEOC endorses the 10th Circuit approach as consistent with Title VII’s agency principles and disagrees that BCI conducted any type of independent investigation before firing Peters. “My feeling is: If the person providing biased information to the decision-maker is a clear agent of the employer, I would hope the decision would be found to be tainted,” said employment law scholar Charles Craver of George Washington University Law School. “Otherwise, what companies could do is isolate the decision-maker by telling lower-level supervisors that as long as they don’t say anything to her that indicates racial or other impermissible animus, they would be safe,” Craver added. Perhaps the court will offer employers an affirmative defense, as it has in sexual harassment cases, avoiding liability if they did an investigation before taking the job action, said Craver. “But I would hope it would require a more detailed investigation than was done in this case.”

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