In <i>Ethel Louise Hill v. Lockheed Martin</i>, 354 F.3d 277, decided January 5, 2004, the U.S. Court of Appeals for the Fourth Circuit held that a biased employee who has no supervisory or disciplinary authority does not become a decision maker whose bias is imputed to the employer simply because he had a substantial influence on the ultimate employment decision complained of by the plaintiff. As a consequence, evidence of bias on the part of the non-decisionmaker will generally be irrelevant where the co-worker had no formal role in the decision at issue.
The plaintiff, Ethel Hill, was fired after receiving three written reprimands in eight months. Hill alleged that her firing was the product of sex and age discrimination and retaliation. Hill neither disputed that she violated the rules that led to the reprimands being issued nor alleged that the Lockheed managers who decided to fire her had acted with discriminatory intent. Rather, Hill alleged that a safety inspector at facility where she worked had called her a “useless old lady” and a “damned woman,” among other insults, and had instigated two of the reprimands against her after she had complained about him. The safety inspector had notified supervisors about Hill’s work infractions and helped compile a report on her work performance before she was fired. The safety inspector, however, had no supervisory authority over Hill nor any authority to discipline her.
According to the court, to prevail on her claim of discrimination, Hill had to adduce evidence showing that the protected trait must have actually played a role in the employer's decision making process and had a determinative influence on the outcome. Thus, the court found the pertinent inquiry to be whether the decision maker, as opposed to other managers or subordinates, evaluated the aggrieved employee based upon discriminatory criteria. The court rejected the notion that employers are vicariously liable for the discriminatory acts and motivations of everyone in their employ, even when such acts or motivations lead to or influence a tangible employment action. In that regard, the court stated, “[w]e decline to endorse a construction of the discrimination statutes that would allow a biased subordinate who had no supervisory or disciplinary authority…to become a decision maker simply because he had a substantial influence on the ultimate decision.” Essentially, the court held that the “buck” stops with the decision maker and that an employer will be liable not for the improperly motivated person who merely influences the decision, but only for the person who in reality makes the decision.
Under what is referred to as the “stray remarks” doctrine, the majority of federal courts hold that statements evidencing a discriminatory animus on the part of a non-decisionmaker are not probative as to the issue of whether an employer’s decision was tainted by such animus. Most courts, however, do not extend the “stray remarks” doctrine to situations where the employer’s decisionmaker materially relied upon information provided by a biased co-worker in making the decision at issue.
While the Fourth Circuit’s decision clearly expands the reach of the “stray remarks” doctrine, its application is not without limits. The court opined that a person allegedly acting pursuant to a discriminatory animus need not be the "formal decision maker" to impose liability upon an employer for an adverse employment action, so long as the plaintiff presents sufficient evidence to establish that the subordinate was the one "principally responsible" for, or the "actual decision maker" behind the action. When a formal decision maker merely rubber-stamps a decision, report, or recommendation actually made by a subordinate, the subordinate may be properly considered to be the actual decision maker or the one principally responsible for the contested employment decision.
A plaintiff will not be heard to complain that a firing authority relied uncritically upon a subordinate's prejudiced recommendation, however, where the plaintiff had a meaningful opportunity to respond to and rebut the evidence supporting the recommendation.
The legal significance that the court attaches to affording an employee the opportunity to respond to and rebut the evidence supporting the recommendation provides another reason to afford employees “due process,” by giving them notice as to the basis for contemplated adverse employment decisions and an opportunity to be heard. To take full advantage of the Fourth Circuit’s decision, an employer should also adhere to the generally accepted management practice of having employment terminations be subject to internal review. Many employers accomplish this by bifurcating the responsibility for such decisions and using separate “proposing” and “deciding” officials. To the extent that the ultimate decisionmaker conducts an independent analysis and assessment, or otherwise approves a subordinate’s proposed decision, the resultant final decision would largely be immune from challenge based upon alleged bias on the part of lower level co-workers.
If you have any questions about the issues discussed in this article or need legal advise relative to taking disciplinary action, including discharge from employment, contact any of the following attorneys in the Firm’s Labor & Employment Practice Group