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Cat's Paw - A new approach is suggested
January 22, 2009 by Ross Runkel at LawMemo
Professor Stephen F. Befort of the University of Minnesota Law School and Alison L. Olig of Best & Flanagan LLP are proposing a whole new analytical approach to the cat's paw issue - subordinate bias liability under antidiscrimination statutes.
Their article is Within the Grasp of the Cat's Paw: Delineating the Scope of Subordinate Bias Liability Under Federal Antidiscrimination Statutes, 60 South Carolina Law Review ___ (2009).
Here is their main concept:
The topic of subordinate bias liability is beset with layers of complexity. Some of the layers flow from the multiplicity of actors in such cases. Subordinate bias cases invariably implicate at least two actors: a biased subordinate—usually a lower level supervisor—and a higher ranked formal decisionmaker. But, it is not uncommon for additional actors to play roles in these cases, such as other supervisors and managers in a vertical hierarchy, or committee members who participate on a horizontal level.258 The possibility of an independent investigation offers the potential for yet another actor or team of actors. These many participants pose a daunting challenge for a court in determining the ultimate causal role of subordinate bias in the particular circumstances.Subordinate bias liability also implicates layers of important policy issues. Concerns related to causation, agency principles, and the role of employer investigations serve as portals to many critical policy concerns.
Finally, the appellate courts themselves have contributed to this layering effect by providing several layers of confusion. As this Article demonstrates, the circuit courts have adopted at least three different standards for determining subordinate bias liability. In actuality, far more than three viewpoints currently exist, as several gradations in approaches appear within the lenient and intermediate standards.
A striking feature of the various liability standards is that each serves legitimate and substantial policy interests. The lenient standard legitimately recognizes that liability should be possible for subordinate liability that is causally linked to an adverse employment action. The strict standard legitimately recognizes that an employer should be vicariously liable only for the acts of its agents who have been empowered by delegated authority. The intermediate standard, meanwhile, legitimately recognizes the important role that employer investigations can play in furtherance of both discrimination deterrence and litigation avoidance goals.
Given the positive underpinnings of all three standards, our proposed solution is not to choose one standard and one policy to the exclusion of the others, but to attempt an appropriate balance among all three approaches. With that goal in mind, our recommendations may be summarized as follows:
(A) An employer may be liable under federal antidiscrimination statutes for the biased acts of a subordinate employee if(1) the employee acting with bias is a supervisor or otherwise acts in furtherance of authority delegated by the employer, and(2) the biased acts are a motivating factor in a resulting adverse employment action taken by the employer.
(B) An employer, nonetheless, may avoid liability if it establishes a two-part affirmative defense showing that
(1) it has taken reasonable measures to prevent and to correct such bias, such as by the implementation of a meaningful anti-bias policy, and(2) the plaintiff, unreasonably, has failed to take advantage of the preventative or corrective opportunities provided by the employer or otherwise to avoid harm.
(C) Alternatively, where the plaintiff has taken advantage of such measures, or where the employer has not established an anti-bias policy, an employer may avoid liability if it has dissipated the taint of subordinate bias by undertaking a fair, independent, and bias-conscious investigation into the circumstances underlying the contemplated employment action.
This set of recommendations provides a balanced, policy-based analytical framework for addressing the issue of subordinate bias liability. It represents the appropriate grasp of the cat’s paw theory.
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