Tenth Circuit Discusses Split Re Scope of Subordinate Bias Liability in Employment Discrimination Claims

Per E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, --- F.3d ---, 2006 WL 1545501 (10th Cir. June 7, 2006):

Despite broad support for some theory of subordinate bias liability, our sister circuits have divided as to the level of control a biased subordinate must exert over the employment decision. Some courts take a lenient approach, formulating the inquiry as whether the subordinate “possessed leverage, or exerted influence, over the titular decisionmaker.” See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir.2000). On this view, “summary judgment generally is improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action.” Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1459 (7th Cir.1994). This standard apparently contemplates that any “influence,” the reporting of any “factual information,” or any form of “other input” by a biased subordinate renders the employer liable so long as the subordinate “may have affected” the employment action. …

At the opposite extreme, the Fourth Circuit 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. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 291 (4th Cir.2004) (en banc). Taking its cue from the Supreme Court's statements … that “petitioner [had] introduced evidence that [the supervisor] was the actual decisionmaker” and was “principally responsible” for his firing, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151-52 (2000), the Fourth Circuit held that these formulations mark “the outer contours of who may be considered a decisionmaker for purposes of imposing liability upon an employer.” Hill, 354 F.3d at 289.…The Fourth Circuit's peculiar focus on “who is a ‘decisionmaker’ for purposes of discrimination actions”… seems misplaced. The word “decisionmaker” appears nowhere in Title VII. Instead, the statute imposes liability for discrimination by employers and their agents, 42 U.S.C. § 2000e(b), which in accordance with agency law principles includes not only “decisionmakers” but other agents whose actions, aided by the agency relation, cause injury.

We find ourselves in agreement with the Seventh Circuit, which has rejected the Fourth Circuit's approach as “inconsistent with the normal analysis of causal issues in tort litigation.” Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir.2004). To prevail on a subordinate bias claim, a plaintiff must establish more than mere “influence” or “input” in the decisionmaking process. Rather, the issue is whether the biased subordinate's discriminatory reports, recommendation, or other actions caused the adverse employment action. Id. This standard comports with the agency law principles that animate the statutory definition of an “employer.”