Tenth Circuit Notes Split re Level of Control Required for Subordinate Bias Liability Under Title VII

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

Despite broad support for some theory of subordinate bias liability [under Title VII], 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, 235 F.3d at 227. . . . 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, 354 F.3d at 291. Taking its cue from the Supreme Court's statements in Reeves that “petitioner [had] introduced evidence that [the supervisor] was the actual decisionmaker” and was “principally responsible” for his firing, Reeves, 530 U.S. at 151-52, 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. . . .

We find ourselves in agreement with the Seventh Circuit, which has rejected the Fourth Circuit's approach. . . . Rather, the issue is whether the biased subordinate's discriminatory reports, recommendation, or other actions caused the adverse employment action. . . .