Fall 2007 SBH Quarterly Newsletter
PDF FormatEmployment Law Update: Ninth Circuit Court of Appeals
Unknown bias may result in liability.
Employment action by a biased decision-maker is discriminatory. But what if the decision-maker is objective but received input from biased persons? The Ninth Circuit addressed this question in its recent opinion in Poland v. Chertoff, 494 F3d 1174 (9th Cir 2007). It held that the employer might still be liable for discrimination, even if the decision-maker is seemingly unaware of the taint.
In Poland v. Chertoff, an allegedly biased employee precipitated an investigation that eventually led to discipline. In 1997, Poland filed a complaint with the EEOC that his supervisor Hillberry made ongoing age-related comments. Prior to the complaint, four notes about performance were placed in Poland's file. In the fourteen months following the EEOC filing, 23 more negative performance notes were generated. Spring of 1999, Hillberry requested an administrative inquiry into Poland's performance. A formal inquiry occurred with witness testimony from persons selected without Hillberry's input. The employer's review board recommended reassignment and Poland was transferred. Poland filed suit for age discrimination and retaliation.
The Ninth Circuit, affirmed judgment in favor of Poland. It held that "the subordinate's bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decision making process." The court explained that Hillberry's role in defining the scope of inquiry and leading the review board to unfavorable evidence tainted the transfer decision.
This standard should give employers pause. It is impossible to know the biases and motives of all employees, although direct supervisors are often aware when coworkers do not get along. Employers should outline a consistent procedure to ensure decisions are based on objective information. Especially when discipline is based on or initiated by subjective reports, investigation should encompass a wider scope than only that suggested by the reporting individual.
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