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PJC Signs onto Two Amicus Briefs in Discrimination Cases in Supreme Court

The PJC's Appellate Advocacy Project recently signed on as amicus curiae to two important civil rights briefs filed in the U.S. Supreme Court. On March 26, 2007, the PJC joined the National Women's Law Center and 20 other civil rights organizations in an amicus brief submitted in the case of Tennessee Secondary School Athletic Association v. Brentwood Academy (No. 06-427). While the main question in the case concerns the application of First Amendment law, the amicus brief addressed the question of whether the Tennessee Secondary School Athletic Association (“TSSAA”) is a “state actor” that is subject to constitutional requirements. The Supreme Court has previously held that the TSSAA is a state actor, but the change in the composition of the Court may jeopardize that holding, and notably, TSSAA has seized upon that change to ask the Court to revisit the state action question in this same case. This issue is of significant concern because a Supreme Court decision that TSSAA is not a state actor would not only eliminate constitutional constraints on any discrimination in which state athletics associations might engage, but could also encourage state agencies to insulate themselves from constitutional obligations by delegating responsibilities to outside ("private") organizations. The National Collegiate Athletics Association (“NCAA”) has filed an amicus brief in support of the TSSAA on this issue. The National Women’s Law Center brief’s main contention is that the Supreme Court should not overrule its first Brentwood decision under the doctrine of “stare decisis” – that the Court needs substantial reasons for overruling its own decisions that are not present here. The brief also demonstrates the importance of protecting the constitutional right to equal protection. The issue of whether state high school athletic associations are state actors is very important for all who care about equal opportunity for girls and women, and for racial and ethnic minorities. On March 27, 2007, the PJC joined another stellar group of civil rights advocates, led by the Lawyers' Committee for Civil Rights Under Law and the NAACP, in filing an amicus brief in BCI Coca-Cola Bottling Co. v. EEOC, No. 06-341, a Title VII employment discrimination case. This was one of at least three amicus briefs filed in the case by civil rights and workers' rights organizations in support of the employee's position (represented by the EEOC). The case will determine an important and complex issue in employment discrimination law: when employers can be held liable under Title VII for the biased actions of their lower level supervisors. The specific issue that the Supreme Court will consider is under what circumstances may an employer be held liable under federal anti-discrimination laws based on a supervisor’s discriminatory animus, where the person or persons who made the actual adverse employment decisions harbored no discriminatory motive toward the impacted employee. In this case, a biased lower level supervisor provided information to a higher lever supervisor who fired the employee after a very limited investigation. The 10th Circuit held that an employer can be held liable if “the biased supervisor’s discriminatory reports, recommendation, or other actions caused the adverse employment action.” Under this standard “an employer can avoid liability by conducting an independent investigation of all allegations against an employee” and that “simply asking an employee for his version of events may defeat the inference that an employment decision was racially discriminatory.” The employer filed a petition for certiorari and the Supreme Court granted it. In its brief, BCI Coca-Cola argues that an employer can only be held liable if the “actual decision maker” was biased. It also argues that if an employer has internal anti-discrimination policies and procedures and conducted “some” investigation of the circumstances around the adverse employment decision, then it cannot be held liable. In the amicus brief joined by the PJC, we take the position that the purpose of Title VII is to eliminate race (and other protected classifications) as a factor in employment decisions, not just to stop discrimination by encouraging employers to adopt antidiscrimination policies and educating their personnel. The proper analysis for determining this is a “motivating factor” test. In short, the brief argues that an employer is liable whenever unlawful bias was a motivating factor, even when the biased supervisor is not the one who ultimately takes the adverse employment action.

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