# Amicus Curiae Brief — BCI Coca-Cola Bottling Co. v. EEOC, 127 S. Ct. 852 (2007) (No. 06-341)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007

## Text

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No. 06-341

IN THE
Supreme Court of the Anited States

BCI Coca-COLA BOTTLING COMPANY OF LOS ANGELES,
Petitioner,
Uv.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Respondent.

On Writ of Certiorari to the
United States Courts of Appeals
for the Tenth Circuit

AMICUS CURIAE BRIEF OF THE
AMERICAN ASSOCIATION FOR JUSTICE
IN SUPPORT OF RESPONDENT

LEWIS S. EIDSON JEFFREY L. NEEDLE *
1050 31st St., N.W. Law Office of Jeffrey
Washington, DC 20007 Needle
(202) 965-3500 119 First Ave. South

Suite 200

President, Seattle, WA 98104

American Association (206) 447-1560

for Justice *Counsel of Record

Attorney for Amicus Curiae

a
TABLE OF CONTENTS
TABLE OF AUTHORITIEG....................ccccceeeeeeeeees iii
IDENTITY AND INTEREST
OF AMICUS CURIAE .......cccccccsssssecccccccescsessesees 1
SUMMARY OF THE ARGUMENT.......................0008 1
ST ‘wiiceiiintcinniainaniattnnesiinainantninisiiinnniiianranaain 6

I. A CLEAR RULE WHEN A
SUBORDINATE’S BIAS MAY BE
IMPUTED TO THE EMPLOYER IS
CRUCIAL IN TITLE VII
DISCRIMINATION CASES, UNDER
EITHER SHIFTING-BURDENS OR
MIXED-MOTIVES FRAMEWORK. ..........0000000 6

II. AGENCY THEORY SUPPORTS
IMPUTING LIABILITY WHERE THE
BIASED EMPLOYEE WAS THE CAUSE
OF THE TERMINATION WITHOUT
ANY INTERVENING SUPERSEDING
Tena ceccnnsctanenenetniiamiidestnnnninnedeimendtientasaients 10

A. The Biased Supervisor Was Acting
Within the Scope of Employment....... 11

B. The Employer’s Investigation is Not
a Superseding Cause Sufficient to
Break the Causal Chain. ....................4 14

Ill. TITLE VII REQUIRES THE
EXHAUSTION OF ADMINISTRATIVE
REMEDIES PRIOR TO SUIT. ............eeceee0e- 18

IV. CORPORATE EMPLOYMENT
POLICIES ARE NOT A SUBSTITUTE
FOR THE ADMINISTRATIVE
PROCESS OR JUDICIAL
ENFORCEMENT OF TITLE VILI..............000 19

A. Employers Have a Strong Incentive
to Implement Anti-Discrimination
Ds ccrscscertetennssemnensmmnigeemenonmnin 23

B. A Title VII Plaintiff is Not Required
to Complain About Discrimination

to Corporate Human Resources......... 25
V. THE ALLEGED BURDEN ' ON
EMPLOYERS Is VASTLY
PIII, ccncencsssnnsnserscsenncesannssseanesens 26

A. The Defendant Preserves All
Defenses Regardless of Imputed
Fein TIE hicicrtiritaistnamncinidantniiansmnanidmingninanesinbiiins 26

B. An Adequate Investigation Must
Determine the Truth of the
Allegations and That They Are Not
ee cncniescnninnisionnensintenensianeins 28

C. An Adequate Investigation Does
Not Impose An Undue Burden On
IR ccccccnsctsnnemieinineneminnininns 29

CE ee cccennsecesenserenssenenneersnscossnnemenssoenanageonsens 30

TABLE OF AUTHORITIES
CASES
Barnes v. St. Catherine’s Hospital, 563 F.2d 324
I, 25
Brown v. General Services Administration, 425 U.S.
UR RPR ae a ReS OT ae RUD Sey 18
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
REET aoa ee RES AEM RT 14, 23, 25, 29
Cadena v. Pacesetter Corp., 224 F.3d 1203
ERSTE See ie s eeee 24
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2008)......... 9
E.E.O.C. v. AIC Security Investigations, Ltd.,
55 F.3d 1276 (7th Cir. 1995) ooo... cececeesccceeeees 10

Equal Employment Opportunity Commission v. BCI
Coca-Cola Bottling Company of Los Angeles, 450
F.3d 476 (10th Cir. 2006) oo... ccc eccceeceseecceceseeees 6

Equal Employment Opportunity Commission v.
Warfield-Rohr Casket Co., Inc., 364 F.3d 160 (4th

Sn aid to at Dek ld Dl ee) 8
Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S.

TT RD RRS AR A ee 16
Faragher v. Boca Raton, 524 U.S. 775 (1998)

Pan eeteh Mee ste en ANSE eT MOE SSO ON art ae 1, 11, 13, 14
Farr v. NC Machinery Co., 186 F.3d 1165 (9th Cir.

a a a ea an aD 16
Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir.), cert.

denied, 516 U.S. 1011 SEES eRe. Ble 10

Grant v. Lone Star Co., 21 F.3d 649 (5th Cir. 1994) 10

iv

Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir.

BIO, ascccenniinsinitiectacntstdimnmeceninmncnmnmnectennntinnmmniont 9
Hillstrom v. Best Western TLC Hotel, 354 F.3d 27

Cat Cle. BOOB) ...0..cccsesscccvssescccossescccesevesonsevevenessseners 8
Holly D. v. California Institute of Technology, 339

F.3d 1168 (Othe Cle. BODG) ........cccccccccccccsecrsscscccesceee 23
Kolstad v. American Dental Ass’n, 527 U.S. 526

I issccciicossiichiseiccinensaunsicicdiinniandiniaiansewrmeiennniaiannes 12, 24
Kotcher v. Rosa & Sullivan Appliance Center, Inc.,

OBT F.3d GO (Bnd Cie. 19BB)........ccccccsevvecesscccessscccees 14
Lenhardat v. Basic Institute of Tech. Inc., 55 F.3d

SF GBs Git, FE exccvcevvincccssccesicenessncsvesesenecsonncesons 10
Lewis v. Young Men’s Christian Ass'n, 208 F.3d

BEBE CRB Gale, BIE aces cvcececsecvescesceccvssccscesserssensed 8
McDonnell Douglas Corp. v. Green, 411 U.S. 792

i iccicncinncvecsicsssnecssewineninnninncniseeennationenionmns 7,9, 27
McGinest v. GTE Service Corp., 360 F.3d 1103

Ss Cie, BI ncecccticesenevveersenceetensscovesvnimnnvesemenesesecs 9
Miller v. Maxwell's Intern. Inc., 991 F.2d 583

I Te, i vininccicsscsnesinnisnsecsiscuinsninieinsesicnniincessesen 10
Obrey v. Johnson, 400 F.3d 691 (9th Cir. 2005)....... 26
Price Waterhouse v. Hopkins, 490 U.S. 228

Pi acsicccnseesecccsscuccecnescosssssnnnsesssssccnsessevsoncetuccesens 7,11
Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th

BN, I ss ssitesinnccceditesniisdnedeslidincedsinndninseneenneenenionenentitl 8
Reeves v. Sanderson Plumbing, 530 U.S. 133

Isis ciininannerneniiiniannanenabiniabadainiennennetintt 11
Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir.

SI vnksciadecceuusinsiicecnniniadesncdatneusndedniosintonssdecennsnssenennn 10

Shager v. Upjohn Co., 913 F.2d 398 (7% Cir. 1990) .14

Vv

Smith v. Lomax, 45 F.3d 402 (11th Cir. 1995)......... 10
Springer v. Seaman, 821 F.2d 871 (1st Cir.
___ EERE PREP E a DE S ER IS TSU mcs ON 15, 16
Stegall v. Citadel Broadcasting Co., 350 F.3d 1061
| UI em ee 8
Texas Department of Community Affairs v. Burdine,
ee I SETI caiicininicipniiseresseiteeesinane iicedoiumiaioaaea! 7

Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995).10
Vinieratos v. United States Air Force, 939 F.2d 762

OP NCI iicnesiticip hacia ataet et ee 18
Wathen v. General Electric Co., 115 F.3d 400 (6th
a Pee ei ereniidistannpasennicsiaiadauaiacdaint eee 10
Watson v. Southern Pennsylvania Transportation
Authority, 207 F.3d 207 (3rd Cir. 2000).................. 8
Wright v. Murray Guard Inc., 455 F.3d 702 (6th Cir.
Sis ioissicisnensvecnasindibesdsenanmiiintteintaicaeniiaaaasea nn 9

STATUTES AND REGULATIONS

42 U.S.C. § 2000-16 (C) ...ecceccccseccssessssessssescssecseccescese 18
42 U.S.C. § 2000e 16(c); oo... ineaiideaicidadimal 18
42 U.S.C. § 2000¢ 2(a)(1)-occcseccsscscssessssesssecsssessecesceseee 7
ee ee ee I I cinitticesdichioeacistcdarnnaadtaceanantaee 7,9
42 U.S.C. § 20000 5(b) ....ecccscsssssessssssssecssssscssecsseccoseee 19
42 U.S.C. § 20000 5(e)(1) .ccscccssescssessssesessescsssessecceeeee 19
42 U.S.C. § 20000 5(f)(1) occeecccecccssecessescsscecseceseccoscese 19
42 U.S.C. § 2000 5(g)(2)(B) coecccecscsssscsssccseccoseccssee 8, 29
QB UDG. © ODD scessinccntssceceesecscovseceseseessesesssessecess 9

ee 18
TEES 18
29 C.F.R. § 1614.105(a)(1)......cesccesccecsvecssessneesseeesneene 18
LL 18
OTHER AUTHORITIES

Susan Bisom-Rapp, An Ounce of Prevention is a Poor
Substitute for a Pound of Cure: Confronting the
Developing Jurisprudence of Education and
Prevention in Employment Discrimination Law,

22 Berkeley J. of Emp. and Labor Law 1 (2001) ..22

John M. Darley & Paget Gross, A Hypothesis-
Confirming Bias in Labeling Effects, 44 J.
Personality & Soc. Psychol. 20 (1983)................... 21

John M. Darley & Russell H. Fazio, Expectancy
Confirmation Processes Arising in the Social
Interaction Sequence, 35 Amer. Psychologist
I aici iat ebdibgtereneannensenneneneornensqeneet 21

Joanna L. Grossman, The Culture of Compliance:
The Final Triumph of Form Over Substance In
Sexual Harassment Law, 26 Harv. Women’s
tinier ararnsennmnnnninnniccunasunnennns 22

Einhorn J. Hillel & Robin Hogarth, Confidence in
Judgment: Persistence of the Illusion of Validity,

85 Psychological Rev. 395 (1978) ..............cccccceeeees 21
Robert E. Keeton, Legal Cause In the Law of Torts
arian niinnaninenensanineenensentt 16

Charles G. Lord, Lee Ross & Mark Lepper, Biased
Assimilation and Attitude Polarization: The Effects
of Prior Theories on Subsequently Considered

_Evidence, 37 J. Personality & Soc. Psychol. 2098

vii

W. Prosser & W. Keeton, The Law of Torts (5th Ed.
SUNN irilininttscinina it aa a 16

Restatement of Agency (Second) § 219(1) (1958) .....11
Restatement of Agency (Second) § 228 (1958),...12, 13
Restatement of Agency (Third) § 7.07(2) (2006) 12, 13

Restatement (Second) of Torts § 431 ....0...0.......ccccc. 15
Restatement (Second) of Torts § 442 .................. 15, 17
Restatement (Second) of Torts § 870 ...............ccccc.0-. 15
Restatement of Torts (Third) Apportionment of
Liability § 3 (2000).........ccccceccsccssecscesscoseseesceseseesee 15

Mark Snyder & William B. Swann, Hypothesis-
testing Processes in Social Interaction, 36 J.
Personality & Soc. Psychol. 1202 (1978)............... 21

Mark Snyder, Seek and Ye Shall Find: Testing
Hypotheses About Other People, in Social
Cognition: The Ontario Symposium (E. T.
Higgins, E. P. Herman, & Mark P. Zanna, eds.,

P. C. Wason, On the Failure to Eliminate Hypotheses
in a Conceptual Task, 12 Quarterly Rev. of Exp.
ii i 22

P.C. Wason & P.N. Johnson-Laird, The Psychology
Of Reasoning: Structure and Content (1972)....... 22

IDENTITY AND INTEREST OF AMICUS CURIAE

The Association of American Justice (AAJ)
respectfully submits this brief as amicus curiae.!

AAJ, formerly the Association of Trial
Lawyers of America, is a voluntary national bar
association whose approximately 50,000 trial lawyer
members primarily represent individual plaintiffs in
civil actions. Among those plaintiffs are persons
whose civil rights have been violated by employers
who take adverse employment actions because of
race, color, religion, sex or national origin. In AAJ’s
view, freedom from illegal discrimination is
fundamental to the enjoyment of all opportunities
offered in a free society. Illegal discrimination not
only frustrates the individual’s right to equal
opportunity, it also prevents society from reaping the
benefits of the contributions which highly qualified
individuals are capable of making. AAJ has the firm
conviction that diversity in the work place is
essential both for the fulfillment of individual
liberty, and to enable society to its true potential.

SUMMARY OF THE ARGUMENT

Restatement of Agency (Third) §2.04 (2006)
provides, “An employer is subject to liability for torts
committed by employees while acting within the
scope of their employment.” In Faragher v. Boca
Raton, 524 U.S. 775 (1998), the Court declined to

1 This brief is filed with the consent of both parties. Their
letters of consent have been filed with the Clerk. Pursuant to
Rule 37.6, Amicus discloses that no counsel for a party authored
any part of this brief, nor did any person or entity other than
Amicus Curiae, its members, or its counsel make a monetary
contribution to the preparation or submission of this bricf.

2

recognize this theory of agency as a basis of imputing
liability for sexual harassment, but only because it
was unclear whether harassers were acting within
the scope of their employment. Jd. at 793-801. In this
case, there is no question that the biased supervisor
was the agent of the employer. Whether the
supervisor was designated as an agent for the
purpose of making personnel decisions is completely
irrelevant. It further appears that he was acting
within the scope of his employment. The only
remaining question concerns causation. In this case,
the biased supervisor initiated a process which
caused an adverse employment action — but for his
involvement there would have been no investigation
and no adverse employment action. Applying
traditional common law principles, the employer's
investigation was entirely foreseeable and not an
independent superseding cause sufficient to break
the causal chain and defeat employer liability.
Liability, if any, should be imputed to BCI for the
discriminatory acts of its supervisor.

In this case, the employers motion for
summary judgment was denied. At trial the
employer will be able to make all of the factual
arguments that it now makes to this Court in an
effort to convince a jury that race was not a
motivating factor, and that even if it were, it would
have still made the same decision. If BCI succeeds in
that effort, it will win regardless of imputed liability.

BCI Coca-Cola argues that employers should
be able to insulate themselves from liability in
virtually all cases of discrimination initiated by non-
decisionmakers. It would achieve that goal by
establishing internal human resource policies for
reporting allegations of discrimination and vesting

3

final decision making authority in human resource
personnel. The rule of law advocated by BCI won't
diminish the incidence of discrimination, but will
make it virtually impossible to hold most employers
accountable for the illegal discrimination in the
workplace. Because Title VII does not recognize
individual liability, the inability to hold the employer
liable results in no liability and no accountability.

According to BCI, their “employment policies
embody everything that Congress sought to
accomplish in Title VII.” BCI Brief, at 20. But if that
were true, Congress would never have provided a
judicial remedy to enforce the provisions of Title VII.
If that were true, Congress would have never created
the EEOC to imvestigate claims of illegal
discrimination as a prerequisite for filing suit. If that
were true, Congress would have simply required that
all employers develop and implement sufficient
employment polices, and employ human resources
professionals who are trained in equal employment
opportunity and who, according to BCI,
“unquestionably harbor{] no animus.” Jd. This Court
should not indulge in the fiction that corporate
human resources personnel are neutral
decisionmakers, unaffected by the reports and
recommendations of line supervisors and managers.
This Court should not allow the fox to guard the
chicken coop.

BCI argues nevertheless that employees
alleging illegal discrimination must first internally
complain about the alleged discriminatory practice
and pursue whatever remedies are made available
under the employer's anti-discrimination polieies. It
then argues that the employer’s determination that
an allegation of discrimination is without merit

4

absolves it from liability, even if that determination
proves to be wrong. According to BCI, the relevant
inquiry is not whether the employer's proffered
reasons were “wise, fair or correct” but whether they
were “honestly believed.” BCI Brief at 26. But where
a federal agency or the EEOC honestly determines
that a complaint of discrimination is without merit,
an employee may still thereafter pursue the merits of
a claim in federal district court.

Contrary to the implied assertion of BCI,
Congress did not intend to give greater weight to a
private employer's internal administrative
determination than is given to either a federal
agency acting as an employer, the EEOC or
administrative law judges. Congress never intended
to replace the civil justice system with the self-
policing efforts of private employers. Congress never
intended to require employees to either complain to
their employer about discriminatory practices or
exhaust corporate administrative remedies as a
prerequisite for filing suit. A rule to the contrary
would dramatically alter the enforcement
mechanism of the statute.

The recognition of employer liability for the
discriminatory acts of its agents will create a strong
incentive to train managers and scrutinize their
conduct to prevent discriminatory practices, thereby
fulfilling the prophylactic goals of Title VII. While
enlightened corporate human resource policies are to
be encouraged, their utilization by employees can
never be a substitute for the civil justice system.

BCI argues that the Tenth Circuit's decision
requires it to conduct a complete investigation in
advance of virtually every adverse employment
action involving an employee who falls into a

5

protected classification. This, they argue, would
impose an impossible burden on employers. BCI
Brief at 45. Contrary to BCI’s representations, even
a so-called “rubber stamp” dees not automatically
result in employer liability. In all cases, an employee
must still prove that the protected characteristic is a
“motivating factor.” In all cases, the employer
preserves all remaining defenses and in particular
may avoid liability or damages by proving that it
would have made the same decision even without
consideration of the protected characteristic. In all
cases, the basic structure for proving a violation of
Title VII remains unchanged.

In order to break the causal chain, an
investigation must be an intervening superseding
cause. An employer’s’ so-called independent
investigation is not a superseding cause of
termination from employment, but even it were, an
employer investigation must establish that the
employer would have taken the same action even
without the input from the _ biased _ non-
decisionmaker. To _ satisfy this burden, the
investigation must determine the truth of the
allegations against the employee and establish that
they are not pretextual. BCI’s investigation was
conspicuously deficient to establish either, and
liability, if any, should be imputed to BCI.

6

ARGUMENT

I. A CLEAR RULE WHEN A SUBORDINATE’S
BIAS MAY BE IMPUTED TO THE EMPLOYER
Is CRUCIAL IN TITLE VII DISCRIMINATION
CASES, UNDER EITHER SHIFTING-BURDENS
OR MIXED-MOTIVES FRAMEWORK.

Stephen Peters was fired by BCI Coca-Cola
Bottling Co. after an altercation with his supervisor
regarding week-end work. The supervisor, Mr.
Grado, allegedly harbored racial bias against black
employees, including Mr. Peters. However, the
decision to fire Mr. Peters for insubordination was
made by Ms. Edgar, in the company’s Human
Resources Department, who had no discriminatory
motive and acted on Mr. Grado’s report of the
incident.

The Tenth Circuit, addressing the question of
when the discriminatory animus of a subordinate
who was not the decisionmaker might be imputed to
the employer, ruled:

To prevail on a subordinate bias claim, a plaintiff
must establish more than mere “influence” or
“input” in the decisionmaking process. Rather,
the issue is whether the biased subordinate’s
discriminatory reports, recommendation, or other
actions caused the adverse employment action. . .
. [AJn employer can avoid [imputed] liability by
conducting an independent investigation of the
allegations against an emplovee.

Equal Employment Opportunity Commission v. BCI
Coca-Cola Bottling Company of Los Angeles, 450 F.3d
476, 487-88 (10th Cir. 2006). The court found Ms.
Edgar's “investigation” was “inadequate, as a matter
of law, to defeat the inference that Mr. Grado’s racial

7

bias tainted the decision.” Jd. at 492. Summary
judgment was therefore inappropriate. Jd. at 493.

AAJ suggests that well-settled agency rules
and tort principles regarding superseding cause
provide a clear rule in subordinate bias cases that
serves the purpose of Title VII.

Title VII provides:

It shall be an unlawful employment practice for
an employer to fail or refuse to hire or to
discharge any individual, or otherwise to
discriminate against any individual with respect
to his compensation, terms, conditions, or
privileges of employment, because of such
individual's race, color, religion, sex, or national
origin.
42 U.S.C. § 2000e 2(a)(1).

For many years there have been two well-
recognized frameworks for analyzing disparate
treatment discrimination cases. First is the so-called
“pretext” framework with its origins in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) and
Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). The McDonnell Douglas
evidentiary framework is a guideline using shifting
burdens to assist the court in determining the
existence of an illegal motive. The second framework,
known as “mixed-motives,” was recognized in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1983), and was
later codified in the Civil Rights of Act of 1991; 42
U.S.C. § 2000e-2(m).’

* The Civil Rights Act of 1991 did not amend the ADEA. Even
though both statutes provide for a violation of the statute where
an adverse action is taken “because of’ the protected

8

The mixed-motive model does not utilize
shifting burdens, but instead focuses more directly
on proving that a protected characteristic was a
motivating or substantial factor in the decision
making process. Under a mixed-motive analysis
Plaintiff does not have to prove pretext. See Stegall
uv. Citadel Broadcasting Co., 350 F.3d 1061, 1067 (9th
Cir. 2003) (“In mixed motive cases, . . . it does not
make sense to ask if the employer’s stated reason for
terminating an employee is a pretext for retaliation,
when the employer has offered more than one reason
for the action that it took. Rather, the relevant
inquiry in a ‘mixed motive’ case is distinct from that
of a ‘single motive’ or pretext case”). If Plaintiff
establishes that the illegal reason was a motivating
factor, the burden then shifts to the employer to
prove as an affirmative defense that it would have
made the same decision even without consideration
of the protected characteristic. 42 U.S.C. § 2000e

5(g)(2)(B).

classification, a number of circuits have held that the mixed
motive standard of the 1991 Act does not apply to cases under
the ADEA. See Lewis v. Young Men’s Christian Ass'n, 208 F.3d
1303, 1305 (11 Cir. 2000); Watson v. Southern Pennsylvania
Transportation Authority, 207 F.3d 207, 215 (34 Cir. 2000);
Equal Employment Opportunity Commission v. Warfield-Rohr
Casket Co., Inc., 364 F.3d 160, 163 n.1 (4th Cir. 2004) (“We have
_ previously assumed, without deciding, that direct evidence is
still a prerequisite for a mixed-motive analysis in ADEA cases.
[citing cases] We are not called on to decide that issue because
the EEOC has presented direct evidence of discrimination.”).
But see Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th
Cir. 2004) (deciding that the standards established by the Court
in Desert Palace and by the Civil Rights Act of 1991 apply to the
ADEA); Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 31
(1st Cir. 2003) (deciding whether “the real reason, at least in
part, was age and gender discrimination’).

9

In Desert Palace, Inc. v. Costa, 539 U.S. 90
(2003), this Court rejected the distinction between
direct and circumstantial evidence and ruled that, to
obtain a mixed-motive instruction under § 2000e
2(m), “a plaintiff need only present sufficient
- evidence for a reasonable jury to conclude, by a
preponderance of the evidence, that ‘race, color,
religion, sex, or national origin was a motivating
factor for any employment practice.” 539 U.S. at 101.
Numerous lower courts have applied this same
reasoning to summary judgment rulings. :

The Tenth Circuit decided this case using the
McDonnell Douglas shifting-burden model. But the
mixed-motive model is used by many lower courts in
many cases. The Court should take care not to
endorse one model at the expense of the other.

Title VII defines an employer as “a person
engaged in an industry affecting commerce who has
fifteen or more employees for each working day in
each of twenty or more calendar weeks in the current
or preceding calendar year, and any agent of such a
person.” 42 U.S.C. § 2000e(b). Individuals, however,

* See McGinest v. GTE Service Corp., 360 F.3d 1103, 1122 (9%
Cir. 2004) (“[W]hen responding to a summary judgment motion,
the plaintiff is presented with a choice regarding how to
establish his or her case. [Plaintiff] may proceed by using the
McDonnell Douglas framework, or alternatively, may simply
produce direct or circumstantial evidence demonstrating that a
discriminatory reason more likely than not motivated [the
employer}”); But see Griffith v. City of Des Moines, 387 F.3d 733,
735 (8 Cir. 2004) (“Desert Palace, a decision in which the
Supreme Court-decided only a mixed motive jury instruction
issue, is an inherently unreliable basis for district courts to
begin ignoring this Circuit's controlling summary judgment
precedents’); Wright v. Murray Guard Inc., 455 F.3d 702, 716
(6th Cir. 2006) (Moore, J., concurring) (collecting cases).

10

are not liable for damages under Title VII.” As a
consequence, if liability is not imputed to the
employer, there is no liability or accountability at all.

II. AGENCY THEORY SUPPORTS IMPUTING
LIABILITY WHERE THE BIASED EMPLOYEE
WAS THE CAUSE OF THE TERMINATION
WITHOUT ANY INTERVENING SUPERSEDING
CAUSE.

According to BCI, when an employer institutes
effective policies designed to root out animus among

* See Miller v. Maxwell's Intern. Inc., 991 F.2d 583, 587 (9% Cir.
1993) (“If Congress decided to protect small entities with
limited resources from liability, it is inconceivable that
Congress intended to allow civil liability to run against
individual employees”); Tomka v. Seiler Corp., 66 F.3d 1295,
1313 (2d Cir. 1995) (“We now hold that individual defendants
with supervisory control over a plaintiff may not be held
personally liable under Title VII"); E.E.0.C. v. AIC Security
Investigations, Lid., 55 F.3d 1276, 1282 (7th Cir. 1995)
(“individuals who do not otherwise meet the statutory definition
of ‘employer’ cannot be held liable under the ADA”); Lenhardt v.
Basic Institute of Tech. Inc., 55 F.3d 377, 381 (8th Cir. 1995)
(supervisors and managers not subject to individual liability);
Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir.), cert. denied, (1995)
(Title VII does not impose individual liability. on supervisory
employees); Smith v. Lomax, 45 F.3d 402, 403 (11th Cir. 1995)
(employees cannot be held liable under the ADEA or Title VII);
Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994) (Title
VII does not permit imposition of liability upon an individual
unless they meet Title VII's definition of employer); Sauers v.
Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993) (under
Title VII, suits must proceed against individuals in their official
capacities only; individual capacity suits are inappropriate);
Wathen v. General Electric Company, 115 F.3d 400, 405 (6th
Cir. 1997) (“an individual employee/supervisor, who does not
otherwise qualify as an ‘employer, may not be held personally
liable under Title VII”).

11

non-decisionmaking subordinates, those
subordinates are not the employer's agents whose
discriminatory bias may be imputed to the employer.
BCI Brief at 16. Thus, BCI argues, an employer is
liable for the acts of non-decisionmakers only if it
knew or should have known of the subordinates’
discriminatory animus, and the protected trait was a
determinative influence in the adverse action. BCI
Brief at 29. BCI is wrong.

A. The Biased Supervisor Was Acting
Within the Scope of Employment.

In Faragher v. Boca Raton, 524 U.S. 775
(1998), the Court considered the agency theory to be
applied for imputing liability to the employer in
cases involving sexual harassment. In discussing the
Restatement of Agency (Second) § 219(1) (1958), the
Court acknowledged that a “master is subject to
liability for the torts of his servants committed while
acting in the scope of their employment.” 524 U.S. at
793. The Court declined to apply that theory of
agency, but only because it was unclear whether a
harasser was acting within the scope of employment
or a frolic. Listing examples, the Court clearly

* BCI and its amici rely upon Reeves v. Sanderson Plumbing.
530 U.S. 133 (2000), for the proposition that Plaintiff must
prove that race played a “determinative influence” in the
outcome. But Reeves was decided under the ADEA, which was
not included in the amendments to the Civil Rights Act of 1991.
Moreover, this heightened showing is at odds with this Court's
decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
which simply required that plaintiff establish that a protected
characteristic was a “substantial factor” in the decisionmaking
process, even though other factors also motivated the practice.
490 U.S. at 258-59 (White, J., concurring). Justice White's
opinion is controlling for cases not decided under the Civil
Rights Act of 1991.

12

indicated that types of discrimination other than
harassment were within the “scope of employment”
theory. Jd. at 793-801. Also relying upon the
Restatement of Agency (Second) § 228(1) (1958), the
Court in Kolstad v. American Dental Ass’n, 527 U.S.
526 (1999) acknowledged,

[Even intentional torts are within the scope of
an agent’s employment if the conduct is “the kind
[the employee] is employed to perform,” “occurs
substantially within the authorized time and
space limits,” and “is actuated at least in part, by
a purpose to serve the” employer.

Id. at 543-544. An employee who satisfies these rules
is acting within the scope of employment “even if the
employee engages in acts ‘specifically forbidden’ by
the employer and uses ‘forbidden means of
accomplishing results.” Jd.°

The Restatement of Agency (Third) § 7.07(2)
(2006) addresses when an employee is acting within
the scope of employment for the purpose of vicarious
liability somewhat differently:

An employer acts within the scope of
employment when performing work assigned by
the employer or engaging in a course of conduct
subject to the employer's control. An employee's
act is not within the scope of employment when
it occurs within an independent course of conduct

* While the Court in Kolstad declined to apply the Restatement
rule to impute liability for punitive damages, the issue before
the Court now involves only compensatory damages. Applying
this rule within the context of compensatory damages would not
diminish the incentive to implement anti-discrimination
programs, just to the contrary. See infra at 22-24.

13

‘ not intended by the employee to serve any
purpose of the employer.’

In this case, the biased supervisor was acting
within the scope of employment. The employer
delegated to the biased supervisor the authority to
report insubordination to human resources, which is
exactly what he did. The biased supervisor was the
agent of the employer and at all times was acting
within the employer’s control. Whether the agent
was specifically designated to make personnel
decisions is irrelevant if the agent was acting within
the scope of employment and his conduct “caused”
the harm to Plaintiff. An employer is responsible for
the wrongful acts of all its employees, not only those
in personnel.

Like harassment, disparate treatment
discrimination is a persistent problem in the
workplace. As this Court has recognized,

An employer can, in a general sense, reasonably
anticipate the possibility of such conduct
occurring in its workplace, and one might justify
the assignment of the burden of the untoward
behavior to the employer as one of the costs of
doing business, to be charged to the enterprise
rather than the victim. . . . developments like
this occur from time to time in the law of agency.

Faragher, 524 U.S. at 798.

’ This section of the Restatement of Agency (Third) differs with
the Restatement Second because it is phrased in more general
terms. Under Restatement Second § 228(1)(c), conduct is not
within the scope of employment unless “it is actuated, at least
in part, by a purpose to serve” the employer. The Restatement
of Agency (Third) exempts only that “conduct intended to serve
no purpose of the employer.” See Restatement of Agency
(Third), Section 7.07 comment b (2006).

14

The Court in Faragher declined to impose this
burden on the employer, but only because “there is
no reason to suppose that Congress wished courts to
ignore the traditional distinction between acts falling
within the scope and acts amounting to what the
older law called frolics or detours from the course of
employment.” Jd. But this case does not involve
harassment, and the biased supervisor was acting
within the scope of employment and not acting on a
frolic or detour. The discriminatory behavior of the
non-decisionmaking supervisor is easily anticipated,
and should be charged to BCI as one of the costs of
doing business. *

B. The Employer’s Investigation is Not a
Superseding Cause Sufficient to Break
the Causal Chain.

BCI argues that the employer should be liable
where one link in the chain is infected by bias,

* In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998),
this Court recognized vicarious liability where the actions of the
supervisor “culminates” in tangible employment action. 524
U.S. at 765. In Ellerth, the Court recognized that supervisors
without final decisionmaking authority would “cause” tangible
employment action by officials higher in the decisionmaking
process. “The decision in most cases is documented in official
company records, and may be subject to review by higher level
supervisors. . . . The supervisor often must obtain the
imprimatur of the enterprise, and use its internal processes.”
524 U.S. at 762, citing Shager v. Upjohn Co., 913 F.2d 398, 405
(7 Cir. 1990) (noting that the supervisor did not fire plaintiff;
rather, the Career Path Committee did, but the employer was
still hable because the Committee functioned as the supervisor's
‘cat's-paw’); Kotcher v. Rosa & Sullivan Appliance Center, Inc.,
957 F.2d 59, 62 (2™¢ Cir. 1992) (“From the perspective of the
employee, the supervisor and the employer merge into a single
entity”). As applied to non-harassment discrimination, however,
all cases necessarily culminate in tangible employment action.

15

unless the causal chain is broken by an independent
investigation. BCI Brief at 44. Whether a causal
chain can be broken by a so-called independent
investigation is determined by traditional principles
of common law tort.

The traditional tort principles for determining
when an intervening event rises to the level of a
superseding cause are couched in the language of
negligence, but apply to intentional torts as well. See
Springer v. Seaman, 821 F.2d 871, 877 (1st Cir.
1987) (citing Restatement (Second) of Torts § 870
cmt. |, and § 431 cmt. d). The Restatement of Agency
(Second) lists six considerations to determine the
existence of a superseding cause.’ Every one of the
considerations listed in the Restatement militates
against treating an employers personnel

* “The following considerations are of importance in
determining whether an intervening force is a superseding
cause of harm to another: (a) the fact that its intervention
brings about harm different in kind from that which would
otherwise have resulted from the actor's negligence; (b) the fact
that its operation or the consequences thereof appear after the
event to be extraordinary rather than normal in view of the
circumstances existing at the time of its operation; c) the fact
that the intervening force is operating independently of any
situation created by the actor's negligence, or, on the other
hand, is or is not a normal result of such a situation; (d) the fact
that the operation of the intervening force is due to a third
person’s act or to his failure to act; (e) the fact that the
intervening force is due to an act of a third person which is
wrongful toward the other and as such subjects the third person
to liability to him; (f) the degree of culpability of a wrongful act
of a third person which sets the intervening force in motion.”
Restatement (Second) of Torts § 442. The issue of superseding
cause is not address in the Restatement of Torts (Third). See
Restatement of Torts (Third) Apportionment of Liability § 3
emt. c (2000).

16

investigation for discipline as a superseding
intervening cause. In particular, “[t}he courts are
quite generally agreed that [foreseeable] intervening
causes . . . will not supersede the defendant's
responsibility.” W. Prosser & W. Keeton, The Law of
Torts § 44, at 303 04 (5th Ed. 1984). See also Exxon
Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837 (1996)
(“The doctrine of superseding cause is . . . applied
where the defendant's negligence in fact
substantially contributed to the plaintiffs injury, but
the injury was actually brought about by a later
cause of independent origin that was _ not
foreseeable”); Farr v. NC Machinery Co., 186 F.3d
1165, 1169 (9th Cir. 1999) (“the doctrine of
superseding intervening cause is at bottom an
expression of the requirement of foreseeability”)
(citing Robert E. Keeton, Legal Cause In the Law of
Torts 38-41 (1963)).

In Springer v. Seaman, 821 F.2d 871 (1st Cir.
1987), an independent contract postal carrier alleged
that the U.S. Post Office terminated his contract as
the result of an investigation instigated by third
parties who were racially motivated. Jd. at 873. The
district court granted the defendants’ motion for
summary judgment because it concluded that the
third parties’ actions were not the proximate cause of
the Plaintiffs contract termination. The Court of
Appeals reversed.

The Court of Appeals held that generally
proximate causation was a question of fact for the
jury. The Court concluded that “traditional tort rules
determine when an intervening cause rises to the
level of a superseding cause, destroying proximate
causation by the primary act and thus relieving the
defendant of liability.” Jd. at 877. The Court relied

17

upon the six factors set forth in the Restatement of
Torts (Second) § 442 and concluded that- the
defendants “have not shown that the investigation
and termination decision were _ sufficiently
independent of the individual defendants’
discriminatory actions to constitute superseding
causes under the Restatement as a matter of law.”
Id. at 879."

The Tenth Circuit did not apply the “scope of
employment” theory of agency. It did not analyze
whether BCI’s investigation could be an independent
superseding cause of Plaintiffs termination from
employment. If it had, it could not have concluded
that “an employer can avoid liability by conducting
an independent investigation of the allegations
against the employee.” 450 F.3d at 488.

'° Applying the Restatement considerations to this case, a) the
employer's investigation did not bring about a harm different in
kind from that which would otherwise have resulted from the
supervisor's conduct. The supervisor's conduct was intended to
result in disciplinary action against the employee, which is
exactly what happened; b) The employer's investigation and
subsequent termination was absolutely normal, as opposed to
extraordinary in view of the circumstances existing at the time
of its operation; c) The investigation is not independent of the
supervisor's conduct, but is the normal result of his report to
human resources; d) The employer's investigation is not the
result of a third person’s act; the supervisor and the human
resources representative conducting the investigation work for
the same employer; e) the employer's investigation is not in and
of itself wrongful and would not otherwise subject the employer
to lability; and f) the supervisor was motivated by race in

reporting the employee to human resources - the culpability is
high.

18

III. TITLE VII REQUIRES THE EXHAUSTION OF
ADMINISTRATIVE REMEDIES PRIOR TO
SUIT.

To bring a Title VII cause of action against a
federal agency in district court, an employee must
first exhaust all administrative remedies. 42 U.S.C.
§ 2000e 16(c); Brown v. General Services
Administration, 425 U.S. 820, 832 (1976). A plaintiff
must comply with regulatory and judicially imposed
exhaustion requirements, including the requirement
to pursue the administrative claim “with diligence
and in good faith.” Vinieratos v. United States Air
Force, 939 F.2d 762, 771 (9th Cir.1991)." Thereafter,
an aggrieved employee may file suit in district
court.”

" The employee “must initiate contact with a Counselor within
45 days of the date of the matter alleged to be discriminatory,”
29 C.F.R. § 1614.105(a)(1). The EEO officer then conducts an
investigation and comes to a conclusion The employee can then
file an appeal to the EEOC and thervafter proceed to federal
court, without the obligation to present evidence to an ALJ in
order to exhaust his or her administrative remedies. See 42 U.
S. C. § 2000e-16(c); 29 C.F.R §§1614 401. 1614.407. .

” “Within 90 days of receipt of notice of final action taken by a

department, agency, or unit referred to in subsection (a) of this
section, or by the Equal Employment Opportunity Commission
upon an appeal from a decision or order of such department,
agency, or unit on a complaint of discrimination based on race,
color, religion, sex or national onmgin ... an employee or
applicant for employment, if aggrneved by the final disposition
of his complaint . . . may file a civil action as provided in section
2000e-5 of this title, in which civil action the head of the
department, agency, or unit. as appropriate -shal' be the
defendant.” 42 U.S.C. § 2000e-16ic) Even a decision by an
administrative law judge 1s not binding upon an employee, who
may appeal that decision to either the EEOC or district court.
29 C.F.R. § 1614.110(a).

19

A Title VII plaintiff employed in the private
sector must file an administrative charge with the
EEOC wz.thin 180 or 300 days of the last act of
discrimination. 42 U.S.C. § 2000e 5(e)(1). If, after
investigating, the EEOC finds reasonable cause to
believe the charges are true, it undertakes to
eliminate the disputed employment practice “by
informal methods of conference, conciliation, and
persuasion.” 42 U.S.C. § 2000e 5(b). If the EEOC
finds no reasonable cause or if conciliation is
unsuccessful, the employee must obtain a right to
sue notice, and then file suit within 90 days. See 42
U.S.C. § 2000e 5(f)(1).

BCI argues that its own personnel policies and
efforts at self-policing discrimination should
supersede the administrative process created by
Congress and that, unlike the congressionally
mandated administrative process, its own
administrative process would be binding on the
employee. But Congress did not intend a corporate
human resources policy to substitute for either the
EEOC or the civil justice system.

ITV. CORPORATE EMPLOYMENT POLICIES ARE
NOT A SUBSTITUTE FOR THE
ADMINISTRATIVE PROCESS OR JUDICIAL
ENFORCEMENT OF TITLE VII.

BCI argues that it is the “model of equal
employment opportunity” because it has established
policies to encourage discrimination complaints and
employs highly trained human resources personnel
to oversee the process. According to BCI, “[t]he
relevant inquiry is whether the employer has
established an_ effective policy for reporting
allegations of discrimination and has any reason to

20

suspect that animus infected the relevant decision.
The employer is not liable if, despite its best efforts,
it has no reason to believe that some other employee
without decisionmaking authority has infected the
employment decision with racial bias.” BCI Brief at
15-16. According to BCI, “the relevant inquiry is not
whether BCI’s proffered reasons were ‘wise, fair or
correct’ but whether BCI “honestly believed those
reasons and acted in good faith upon those beliefs.”
BCI Brief at 26.

In effect, BCI argues that the determination
by corporate human resources personnel should be
sufficient to insulate it from lability — even if the
determination of no discrimination is wrong. But as
explained above, even a “no cause” finding by the
EEOC is not binding, and the employee may litigate
the merits of the discrimination claim de novo in
federal district court. It is extraordinarily unlikely
that Congress intended the judgment of corporate
human resources personnel to carry greater weight
than the EEOC or even Administrative Law
Judges.”

'° In the world according to BCI, an employee who is
dissatisfied with the employer's “independent” investigation
and its determination of “no discrimination” could still file a
charge of discrimination with the EEOC. In the employer’s
response to the EEOC, the employer would argue that the
alleged discriminatory supervisor was not the final
decisionmaker, and that the employer did an independent
investigation sufficient to break the causal chain. If the EEOC
confirmed these facts, its investigation would be concluded
without ever reaching the merits of the discrimination claim.
After having received a right to sue notice, the employee could
then file a Complaint in district court. In a summary judgment
motion, the employer would make the same arguments that
were made at the administrative level, and if confirmed the

21

Much like a police department's internal
investigation of an excessive force complaint, an
employers human resources personnel are not
unbiased decisionmakers. It would be nothing less
than folly to assume the neutrality of an employer's
“independent” investigation, and would be even
greater folly to accord its decision binding effect.
Cognitive social psychology teaches that once a
recommendation has been made, it will tend to
function as a prior theory — a tentative hypothesis.
As such, it can reasonably be expected to influence
the ultimate decisionmaker’s judgment in a
recommendation-consistent direction, even if the
employer conducts its own investigation. This
tendency is known as expectancy confirmation bias.
The empirical and_ theoretical literature on
expectancy confirmation bias is vast. Moreover,

case would be dismissed with prejudice and again without ever
reaching the merits. In the world according to BCI, its
judgment about the merits of an employee’s discrimination
claim is in effect res judicata.

'* See Charles G. Lord, Lee Ross & Mark Lepper, Biased
Assimilation and Attitude Polarization: The Effects of Prior
Theories on Subsequently Considered Evidence, 37 J.
Personality & Soc. Psychol. 2098 (1979); Einhorn J. Hillel &
Robin Hogarth, Confidence in Judgment: Persistence of the
Illusion of Validity, 85 Psychological Rev. 395 (1978); Mark
Snyder & William B. Swann, Hypothesis-testing Processes in
Social Interaction, 36 J. Personality & Soc. Psychol. 1202
(1978); John M. Darley & Paget Gross, A Hypothesis-
Confirming Bias in Labeling Effects, 44 J. Personality & Soc.
Psychol. 20 (1983)(demonstrating how expectancy confirmation
bias leads to the reinforcement of social stereotypes); John M.
Darley & Russell H. Fazio, Expectancy Confirmation Processes
Arising in the Social Interaction Sequence, 35 Amer.
Psychologist 867 (1980)(same) Mark Snyder, Seek and Ye Shall
Find: Testing Hypotheses About Other People, in Social
Cognition: The Ontario Symposium 277 (E. T. Higgins, E. P.

22

many legal scholars seriously question whether
employer anti-discrimination policies are effective in
preventing discrimination. E.g. Susan Bisom-Rapp,
An Ounce of Prevention is a Poor Substitute for a
Pound of Cure: Confronting the Developing
Jurisprudence of Education and Prevention in
Employment Discrimination Law, 22 Berkeley J. of
Employment and Labor Law 1 (2001); Joanna L.
Grossman, The Culture of Compliance: The Final
Triumph of Form Over Substance In Sexual
Harassment Law, 26 Harv. Women’s L.J. 3 (2003).

Congress created a comprehensive
administrative process which employees are required
to initiate and exhaust as a prerequisite for filing
suit under Title VII. BCI would have this Court
require the exhaustion of corporate administrative
remedies as a substitute for administrative remedies
required by the EEOC, which would then insulate
the employer from liability even where its decision
was wrong. If any employer investigation is
sufficient to break the causal chain and insulate the
employer from liability, then the employer will
invariably conduct whatever investigation is
required to achieve that end. The employee will then
be denied the opportunity to litigate the merits of his
claim in district court. Congress never intended
employer internal processes to replace the civil
justice system.

Herman, & Mark P. Zanna, eds., 1981)(review of literature on
hypothesis-confirming strategies); P.;C. Wason & P.N. Johnson-
Laird, The Psychology Of Reasoning: Structure and Content
(1972); P. C. Wason, On the Failure to Eliminate Hypotheses in
a Conceptual Task, 12 Quarterly Rev. of Exp. Psychol. 129
(1960).

23

A. Employers Have a Strong Incentive to
Implement Anti-Discrimination Policies.

BCI vehemently argues that Congress
intended the provisions of Title VII be prophylactic,
and that employers should have an incentive to
adopt and implement corporate policies to root out
discrimination in the work place. Those incentives
already exist, and additional incentives are not
needed.

In Burlington Industries, Inc. v. Ellerth, 524
U.S. 742 (1998), the Court established a two prong
affirmative defense to defeat vicarious liability: “(a)
that the employer exercised reasonable care to
“prevent and correct promptly any sexually harassing
behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any
preventive or corrective opportunities provided by
the employer or to avoid harm otherwise.” 524 U.S.
at 765. But it is clear that “[n]Jo affirmative defense is
available, however, when the _ supervisor's
harassment culminates in a tangible employment
action, such as discharge, demotion, or undesirable
reassignment.” Jd. In only those cases which do not
culminate in tangible employment action, a
successful affirmative defense requires an employer
to create sufficient policies and practices to prevent
and correct sexually harassing behavior. E.g., Holly
D. v. California Institute of Technology, 339 F.3d
1158, 1177 (9th Cir. 2003)(reasonable care to prevent
sexual harassment where employer promulgated a
written policy which defined prohibited behavior,
identified contact personnel, and_ established
procedures to investigate and resolve any claims,
made policy available in several publications, and
conducted periodic training on sexual harassment).

24

In Kolstad v. American Dental Ass'n, the Court
established a three part inquiry to address when the
evidence supports a punitive damages verdict. 527
U.S. at 530. The Court reaffirmed that the employee
must demonstrate that “the respondent engaged in a
discriminatory practice or practices with malice or
_ with reckless indifference to the federally protected
rights of an aggrieved individual,” but rejected the
argument that the heightened standard requires
that an employer's behavior be “egregious.” Kolstad,
527 U.S. at 534 35. The Court also held that, “in the
punitive damages context, an employer may not be
vicariously liable for the discriminatory employment
decisions of managerial agents where those decisions
are contrary to the employer’s ‘good faith efforts to
comply with Title VII.” Jd. at 545. This good faith
defense to punitive damages requires that the
employer adopt and implement anti-discrimination
policies. E.g. Cadena v. Pacesetter Corp., 224 F.3d
1203, 1210 (10th Cir. 2000) (“[T]o avail itself of
Kolstad’s good-faith compliance standard, an
employer must at least adopt anti-discrimination
policies[,] make a good taith effort to educate its
employees about these policies, and ‘make good
efforts to enforce’ the policy”).

BCI argues that allowing liability to be
premised upon a discriminatory motive of a non-
decisionmaker who infects the decisionmaking
process will create a disincentive for employers to
maintain a centralized decisionmaking process as a
preventative measure. BCI Brief at 47. To the
contrary, imputing employer liability for the acts of
its agents will create an even stronger incentive to
train managers and scrutinize them to prevent
discriminatory practices. Moreover, there is no
reason to believe that employers will ignore the

25

strong incentives which already exist if the Court
declines BCI’s invitation to subordinate the EEOC
administrative process and the civil justice system to
corporate human _ resource _ anti-discrimination
policies.

B. A Title VII Plaintiff is Not Required to
Complain About Discrimination to
Corporate Human Resources.

The second prong of the Ellerth affirmative
defense generally requires a victim of harassment to
complain to corporate management. Ellerth, 524 U.S.
at 765. Harassment, however, is distinguishable
from other forms of discrimination.

Victims of harassment necessarily know they
are being harassed, and the expectation that they
should complain seems reasonable. Employees who
are subject to adverse employment actions, however,
may not be aware that they are victims of illegal
discrimination. Often a review of a co-worker’s
personnel files is required to demonstrate that an
employee is being treated differently from those not
within a protected classification. E.g., Barnes v. St.
Catherine’s Hospital, 563 F.2d 324, 327 (7th Cir.
1977) (“The plaintiff compiled a __§ statistical
compilation drawn from the personnel files of
employees discharged by the hospital in an attempt
to demonstrate that white employees’ were
consistently given more written warnings and were
permitted more infractions of the hospital rules prior
to any suspension or termination against them”).
Access to the personnel files of co-workers is
routinely and understandably denied to employees.
Access to other information exclusively in the
possession of the employer may be necessary to
establish a_ statistical disparity or pattern and

26

practice of discrimination. E.g., Obrey v. Johnson,
400 F.3d 691, 694 (9th Cir. 2005) (“In a case in which
the plaintiff has alleged that his employer has
engaged in a ‘pattern or practice’ of discrimination,
“[s]tatistical data is relevant because it can be used
to establish a general discriminatory pattern in an
employer's hiring or promotion practices. Such a
discriminatory pattern is probative of motive and can
therefore create an inference of discriminatory intent
with respect to the individual employment decision
at issue”). Often this information is only uncovered
in litigation during the process of formal discovery,
and almost always over the vigorous objections of the
employer. Because many employees may be unaware
that their treatment is based upon a discriminatory
motive or unaware how to prove it, it would be
unreasonable to expect them to complain before the
adverse action or “within a _ reasonable time
thereafter.”

BCI would apparently require that the
employee complain about discrimination prior to the
adverse action or “within a reasonable time
thereafter.” BCI Brief, at 17. Employees are
apparently left to guess at what constitutes “a
reasonable time thereafter.” This issue is more than
academic because in effect this requirement would
create a new statute of limitations which would be
dramatically shorter than anything contemplated by

Congress.

V. THE ALLEGED BURDEN ON EMPLOYERS IS
VASTLY OVERSTATED.

A. The Defendant Preserves All Defenses
Regardless of Imputed Liability.

27

Defendant and amict in support
mischaracterize the Tenth’s Circuit’s ruling. BCI
argues that the court “held that liability attaches
merely upon a showing of a causal relationship
between any employee’s biased conduct and an
employment decision.” BCI Brief at 18. The Advisory
Council argues that “under Tenth Circuit’s ana’) sis,
if a plaintiff alleges discrimination resulting froza the
bias of a subordinate, non-decionmaking employee,
liability will attach unless the employer can
demonstrate that it conducted an ‘independent’
investigation which confirmed its decision was not
caused by the alleged underlying bias.” Advisory
Council Brief at 9-10. The Advisory Council further
argues that the burden of proof shifts to the
employer to refute discrimination without the
necessity of Plaintiff proving pretext, and that this
model would be a fundamental! deviation from the
principles established by this Court in McDonnell
Douglas. Id. But this is incorrect.

The only issue before the Court concerns the
viability of the so called innocent decisionmaker
defense, and under what circumstances it applies to
foreclose the employer's financial responsibility for
the acts of its agents. The failure to prevail under
this affirmative defense does not automatically
result in employer liability and does not waive any
traditional defenses otherwise available to the
employer. It does not obviate the employee's
obligation under McDonnell Douglas to prove a
prima facie case and then subsequently to prove
pretext. Under the mixed-motive analysis, it does not
obviate the necessity to prove that a protected
classification was a motivating factor.

28

On remand BCI will have the opportunity to
persuade the jury that race was not a motivating
factor or that it would have taken the same action
even without consideration of race.

B. An Adequate Investigation Must
Determine the Truth of the Allegations
and That They Are Not Pretextual.

It should be emphasized that no investigation
is adequate to break the causal chain unless it
constitutes an intervening and superseding cause.
The Tenth Circuit erroneously ruled, however, that
in order to avoid imputed liability the employer must
prove that it conducted an independent investigation
which demonstrates that it would have made the
same decision even without the input from the
biased non-decisionmaker. The Court then ruled that
“fijndeed, under our precedent, simply asking an
employee for his version of events may defeat the
inference that an employment decision was racially
discriminatory.” 450 F.3d at 488. Unbelievably, BCI
argues that even the minimal effort of interviewing
the employee would be excessive.

To achieve the intended purpose, at a
minimum any employer investigation must seek to
determine the truth of the allegations against the
employee and that they are not pretextual. Such an
investigation will require considerably more than
asking the employee for his version of events. It may
require interviewing witnesses identified by the
employee or others and reviewing documents to
determine the possible existence of disparate
treatment. Often whether the employer has satisfied
this burden will be a question of fact for the jury. In
this case, the bare bones investigation conducted by
BCI does not satisfy this standard as a matter of law.

29

BCI argues that setting minimum standards
for investigations ignores the realities of day-to-day
human resources administration, that
administrators in each corporation should have
discretion to determine what type of investigation is
appropriate, and that courts must not be “super
personnel departments.” BCI Brief at 46. But this
Court has already required that human resources
departments exercise “reasonable care” to prevent
and protect against illegal harassment. Requiring
that they exercise “reasonable care” to assure the
truth of the allegations against an employee and that
they are not pretextual intrudes no more into the
employer's personnel functions than the Court has
already done in Ellerth.

C. An Adequate Investigation Does Not
Impose An Undue Burden On Employers.

BCI argues that the requirement of some
investigation to break the causal chain would result
in an extraordinary burden — particularly for large
employers involving all adverse actions such as
raises, demotions, promotions, suspensions. Brief at
18, 45. But BCI dramatically overstates its burden.

Under this theory, if the employer seeks to
preserve the so called innocent decisionmaker
defense, it must prove that they would have made
the same decision without the input of the biased
supervisor before the adverse action becoming final.
Logically, this would be an affirmative defense just
like the affirmative defense to damages under Title
VII. See 42 U.S.C. § 2000e 5(g)(2)(B). But even if the
employer decides to rubber stamp, it can still avoid
damages by proving after the adverse action that it
would have made the same decision even without
consideration of the protected characteristic. Jd. In

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both cases, the factual analysis remains essentially
the same, only the timing differs. The issue for the
employer, therefore, is not what it has to prove, but
when it has to prove it.

Employer liability should be imputed where a
biased non-decisionmaker acting within the scope of
employment has caused an adverse employment
action without any intervening and superseding
cause. The minimal investigation conducted by BCI
was not sufficient to break the causal chain initiated
by a biased supervisor. Congress did not intend to
replace the civil justice system with an employer's
human resource policies.

CONCLUSION

For the above reasons, the decision of the court
of appeals below should be affirmed.

Respectfully submitted,

Jeffrey L. Needle

Law Office of Jeffrey Needle
119 Ist Ave. South - Suite #200
Seattle, WA 98104

(206) 447-1560

Attorney for Amicus Curiae

March 27, 2007

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0294%3A09. Public record. Not legal advice.