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In an unpublished decision, Kwiatkowski v. Merrill Lynch, the New Jersey Appellate Division adopted the “subordinate bias” theory that several federal courts have applied in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.