Subordinate’s Gender Bias Creates Liability

Can an employer be liable for discrimination if an employee’s subordinate harbors the discriminatory bias?

When an employee brings a claim for employment discrimination and there’s no direct evidence of discrimination, the employee first has to establish what’s called a prima facie case – the employee has to show he/she: is a member of a protected class, suffered an adverse employment action, met the employer’s legitimate expectations at the time of the adverse employment action, and was treated differently from similarly situated employees outside his/her protected class. Adverse employment actions are taken by managers – they’re actions like termination, discipline, denial of a raise or promotion. The employer then gets a chance to articulate some legitimate, nondiscriminatory reason for the adverse employment action. The employee will prevail on the claim only if he/she can then prove that the employer’s response is merely a pretext for behavior actually motivated by discrimination.

If adverse employment actions are taken by managers, does it matter who harbors the discriminatory bias?

A recent state supreme court decision concluded that a subordinate’s gender bias could influence an employer’s decision to terminate an employee, and therefore could result in employer liability.

Michele Meade served as the Township Manager for Livingston Township in New Jersey for eleven years until her termination by the Township Council. The Council alleged it terminated Meade because of poor job performance. Meade, however, argued that the Council fired her because of her gender, so it could appoint a male replacement to appease the Chief of Police, her “sexist male” subordinate.

To survive summary judgment and be allowed to try her case in front of a jury, the Supreme Court of New Jersey reasoned that Meade was not expected to prove that gender was the only reason for her termination; she needed only to show by a preponderance of the evidence that her gender made a difference in that decision.

Meade offered evidence that two of the four Council members who voted to fire her had expressed the view that the Police Chief refused to accept a woman as his supervisor. The Court concluded that although the Council alleged several areas of dissatisfaction with Meade’s performance, a reasonable jury could conclude that Meade’s gender played a role her termination. The Court further concluded that actions taken to accommodate the discriminatory views of non-decisionmakers – like the Police Chief – can support liability to the same extent as actions taken based on discriminatory views personally held by decisionmakers.

Meade v. Livingston, 265 A.3d 148 (NJ 2021)

What this means to you:

Respectful workplaces try to prevent and address discriminatory behavior, not accommodate or hide it. Ensure your managers know how to properly handle discriminatory behavior – like a male employee refusing to work for a woman – and help mitigate your company’s risk of a lawsuit. To learn about our Managing Within the Law program or to book a workshop, please call 800-458-2778 or emailing us.

Updated 02-07-2022