In a typical harassment/discrimination claim, a plaintiff alleges that inappropriate or discriminatory conduct rendered his or her work environment hostile and, in many cases, that he or she also suffered an adverse employment action (e.g., discharge) caused by the discriminatory workplace. For many years, employers were often successful in obtaining the dismissal of such claims where it could be shown that, at the time of the adverse employment action, the decision-maker had no knowledge of the plaintiff’s protected class or the hostile environment. In essence, the decision-maker could not possibly have discriminated on the basis of something of which he or she was never aware. Hostile work environment claims based solely on a single alleged comment were also prone to dismissal. In a recent case, however, the New Jersey Appellate Division drew upon new federal decisions to change the legal landscape for employers. This change is expected to make it easier for plaintiffs to avoid pretrial dismissal of their suits, and to present their discrimination and harassment claims to a jury.
In an unpublished decision, Kwiatkowski v. Merrill Lynch, the New Jersey Appellate Division adopted the “subordinate bias” theory that several federal courts have applied in Title VII cases when reviewing the dismissal of a discrimination claim. Often described as the “cat’s paw” or “rubber stamp” theory of liability, the subordinate bias theory holds that an employer may be found liable for a facially nondiscriminatory employment action if the decision-maker may have been influenced—even unknowingly—by a biased subordinate employee. In such a case, the biased subordinate provides an illegal taint to the decision-maker’s action by selectively reporting, or even fabricating, information in his communications with her. Thus, the employer can still be held liable even though the decision-maker herself was unbiased, or not even aware that the plaintiff was in a protected class, or had previously complained of discrimination or harassment. In the Kwiatkowski case, the Appellate Division reversed an award of summary judgment to the employer, based upon the federal decisions applying the “subordinate bias” theory.
In Kwiatkowski, both sides agreed that the ultimate decision-maker, a vice-president, was never aware of the plaintiff’s membership in a protected class (homosexual male) and that the plaintiff had, in fact, been insubordinate to his supervisor, a non-decision-maker. It was also undisputed that the allegation of insubordination led the vice president to terminate the plaintiff’s employment. The court ruled, however, that because the vice-president had relied upon the report of insubordination from a supervisor that the plaintiff accused of making an anti-homosexual slur, a jury had to decide whether the supervisor’s bias, and not the insubordination, actually “caused” the termination. This despite the fact that the supervisor’s alleged comment was an isolated occurrence, and occurred only after the decision to terminate had been made. (Therefore, logically, the vice-president could not possibly have considered the comment or even been aware of the bias it reflected when making the decision.)
The court’s holding suggests that the supervisor’s alleged comment (after the decision to terminate had been made, but not yet carried out) evidenced a pre-existing bias that may have improperly motivated the original report of insubordination and the later decision to discharge. Consequently, as the court announced in Kwiatkowski, an employer can avoid this form of “pass through” liability under the subordinate bias theory only if the decision-maker does an independent investigation prior to taking the adverse employment action, rather than simply “rubber stamping” the recommendation of the potentially biased supervisor.
In addition to adopting the subordinate bias theory, the Kwiatkowski decision is important because it expanded the theory that a single offensive comment may be sufficient to create a hostile environment. The court held that a single comment—a supervisor’s alleged homosexual slur—was the “‘rare and extreme’ case in which one incident is so severe that it can be considered, from the perspective of a reasonable employee, to make the working environment hostile.” Prior to Kwiatkowski, the New Jersey Supreme Court had only held that, in single incident cases, a particularly egregious racial slur by a superior was sufficient to establish a hostile environment claim. By expanding this prior, limited holding to a sexual orientation case, the Kwiatkowski court has effectively opened the doors to such claims based on any characteristic protected by the NJLAD (i.e., age, ethnicity, gender, religion, etc).
Accordingly, under Kwiatkowski, employers will have a more difficult time relying on previous cases in which New Jersey courts had granted summary judgment because, absent extraordinary circumstances, a single incident or comment was insufficient to establish a hostile environment as a matter of law.
The court’s decision does not alter the continued importance of documenting the precise timing and grounds for an employment decision. A carefully worded, time-stamped email/voicemail confirming the date, time and reason for decision can still go a long way in defending a later claim of discrimination/retaliation based upon events occurring after the decision, or otherwise unknown to the decision-maker at the time it was made.
To avoid the pitfalls raised by Kwiatkowski, employers should: (1) require decision-makers to conduct independent investigations of any recommended employment actions, including their own review of an employee’s performance, any prior complaints of discrimination against the supervisor involved, and meeting with the employee to hear his or her side of the story prior to taking action; and (2) be vigilant in their training and enforcement of non-harassment policies, as even a single harassing comment may result in liability.