Supreme Court Preview: "Rubber Stamp" Firings and Anti-Discrimination Law
by Helen Norton, Visiting Assistant Professor of Law, University of Maryland School of Law
In BCI Coca-Cola Bottling Co. of Los Angeles v. Equal Employment Opportunity Commission, the Supreme Court will wrestle with the following question: Is an employer’s decision to fire a worker illegally discriminatory when the decisionmaker honestly believes that the worker engaged in misconduct, but when that belief is based on a lower-level supervisor’s racially biased report? This case requires the Court to confront the reality that many important employment decisions in today’s workplace involve multiple players – some, but not necessarily all, of whom may harbor racial bias.
The EEOC brought this race discrimination suit on behalf of Stephen Peters, an African-American who worked for BCI at its Albuquerque facility. The human resources officials who ultimately made the decision to fire Mr. Peters did not know his race at the time, and thus could not have been motivated by racial bias against him. Their decision was based on a report of insubordination by a lower-level supervisor responsible for monitoring and evaluating the performance of Mr. Peters and other workers. The EEOC offered evidence that this supervisor treated black employees less favorably than workers of other races, that he made race-based comments in the workplace, and that he declined to report non-black employees for possible discipline in circumstances similar to that of Mr. Peters. The EEOC argued that this supervisor acted with a racially discriminatory motive in reporting false information about Mr. Peters, and that that racially biased report caused the human resources officials to fire Mr. Peters.
In an opinion written by Bush appointee Judge Michael McConnell, the 10th Circuit Court of Appeals sided with the EEOC, ruling that a plaintiff can establish illegal discrimination if he or she can show that the biased report caused the firing decision.
Applying this rule to the facts of the case, the 10th Circuit held that the EEOC was entitled to a jury trial because a reasonable jury could find that the supervisor’s report to BCI’s human resources officials was motivated by racial bias, that those officials relied exclusively on that report in deciding to terminate Mr. Peters, and that they failed to break the chain of causation between that report and the ultimate firing decision because they did not independently investigate the supervisor’s allegations.
Lower courts have proposed a wide range of approaches to cases like this. For example, the Fourth Circuit focuses solely on whether the last person in the employer’s decisionmaking chain harbors illegal bias. Under this view – which a number of employer groups have urged the Supreme Court to adopt -- employers should be held responsible for decisions shaped by a biased subordinate only in those rare circumstances where the subordinate wields such influence as to be an actual decisionmaker. But, as Judge McConnell observed in BCI Coca-Cola, such a rule would encourage employers to “seek to evade liability, even in the face of rampant race discrimination among subordinates, through willful blindness as to the source of reports and recommendations.” This standard thus threatens to create a safe harbor for discrimination so long as the final decisionmaker remains unaware of lower-level bias.
In contrast, the government and a number of civil rights organizations maintain that an employer should be held responsible for illegal discrimination whenever its biased supervisor uses the authority given him or her – like the authority to report a worker’s behavior to human resources – to cause a firing or similar decision. As the government’s brief points out, this approach “rests on the view that, because the employer has sought to profit though its agents, the employer, rather than the innocent victim, should bear the costs when those agents abuse their delegated authority and cause injury to others.” This proposal seeks not only to ensure that discrimination victims are compensated for their injuries, but also to encourage employers to select and train their supervisors carefully, thus rooting out bias and preventing future discrimination.
The Supreme Court now has the chance to choose among these approaches. As only the second case involving federal job discrimination protections to come before the Roberts Court, the result will carry significant consequences for workers and employers alike -- especially in a world where employers increasingly empower upper-level personnel to make key decisions based on subordinates’ reports and recommendations.