Legal News

Fox News Bias Suit Stayed to Await Ruling on ?Cat?s Paw? Theory

By Brian Harris

By Shannon P. Duffy
U.S. Courthouse Correspondent

The scheduled Jan. 18 trial of a race discrimination suit against the Philadelphia affiliate of Fox News has been canceled now that a federal judge has stayed the case to await a ruling from the U.S. Supreme Court.

In the suit, former Fox News reporter Thomas Burlington claims he was suspended for uttering an incendiary racial epithet during an editorial meeting while discussing a news segment about the Philadelphia Youth Council of the NAACP holding a symbolic burial for the epithet.

Burlington, who is white, claims he meant no offense when he suggested that the station should not refer to the epithet with the phrase "the N-word," but instead should say the word.

U.S. District Judge R. Barclay Surrick ruled that a jury must decide whether Fox News applied an improper double standard by disciplining Burlington for his use of the word, but failing to impose any discipline on black workers who also used the word.

"To conclude that the station may act in accordance with the social norm that it is permissible for African-Americans to use the word but not whites would require a determination that this is a 'good' race-based social norm that justifies a departure from the text of Title VII," Surrick wrote in a Dec. 30 opinion.

Now Surrick has granted a motion by Fox News to stay the case and delay the trial until after the U.S. Supreme Court hands down a ruling in Staub v. Proctor Hospital because the decision may impact Burlington?s case.

At issue in Staub is how courts should apply the theory of "cat?s paw" liability in which a plaintiff claims that the employer was motivated by the discriminatory animus of his co-workers.

Burlington's lawyers -- Stephen G. Console, Laura C. Mattiacci and Susan M. Saint-Antoine of Console Law Offices -- urged Surrick not to delay the trial because the defense team had waited until the eve of trial to seek the stay.

Surrick disagreed and found that the Staub decision could potentially lead to dismissal of Burlington?s case or a change in the jury instructions.

"We are unwilling to take this case to trial based on a legal standard that will almost certainly be clarified by the time the Supreme Court?s current term is over," Surrick wrote.

"It makes no sense to hold a trial now when the jury instruction that we would use regarding subordinate bias liability may well be inappropriate after the Supreme Court decides Staub. So much in this case depends on the standard for subordinate bias liability that there is an excellent chance that a second trial would be necessary after the Supreme Court issues its opinion in Staub," Surrick wrote.

The ruling is a victory for Fox News' lawyers -- Jerome A. Hoffman, Thomas K. Johnson II and Leora F. Eisenstadt of Dechert.

Full post as published by The Legal Intelligencer Blog on January 12, 2011 (boomark / email).