Whose Motive Matters?: Discrimination in Multi-Actor Employment Decision Making

• Author: Rebecca Hanner White; Linda Hamilton Kriege
• Position: J. Alton Hosch Professor of Law, University of Georgia School of Law

J. Alton Hosch Professor of Law, University of Georgia School of Law. Acting Professor of Law, University of California at Berkeley School of Law (Boalt Hall). The authors would like to thank research assistants Melissa Malcom and Tara Nicole Beasley for their work.

I Introduction

"The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination."¹ This statement by the Supreme Court in Reeves v. Sanderson Plumbing Products² recites a basic and familiar principle of employment discrimination law. A successful disparate treatment claim requires a finding of an intent to discriminate.

But who must intend to discriminate? One could start with the obvious answer: a statutory employer must possess the requisite intent. Federal employment discrimination statutes, after all, hold only those who meet the statutory definitions of employer, and not the world at large, responsible for employment discrimination.³

Employers, however, particularly those with the requisite number of employees,⁴ usually are corporate entities who, more often than not, are held vicariously, not directly, liable for employment decisions made by supervisory employees.⁵ Is it, then, the individual supervisor's intent that matters in disparate treatment cases? That appears to be the accepted view; disparate treatment analysis generally proceeds from the assumption that an individual supervisor has taken a challenged action and then questions whether that supervisor acted with the requisite intent.⁶

But it is not at all unusual in many employment settings for a particular employment decision to be made not by a single individual but by a number of persons. Sometimes, employment decisions are made after a recommendation works its way up the chain of authority; sometimes employment decisions are made by a committee or other ad hoc group; and sometimes the decision making process includes both.⁷

The facts in Reeves, for example, present a common scenario. Roger Reeves supervised a production line in Sanderson Plumbing Products's Hinge Room.⁸After complaints about attendance problems in Reeves's department were made, the company's Director of Manufacturing, Powe Chestnut, ordered an audit.⁹Following that audit, Chestnut, together with the Vice-President of Human Resources, Dana Jester, and the Vice-President of Operations, Tom Whitaker, recommended to the company's president, Sandra Sanderson, that Reeves be fired.¹⁰ Sanderson, who not only was the president of the company but Chestnut's wife,¹¹accepted that recommendation and fired Reeves.¹² Thus, the decision making process involved in Reeves' firing involved both a recommendation that went up the chain of command (what we will refer to as vertical decision making) and a recommendation that was itself the product of group action (what we will refer to as horizontal decision-making). At least four people were involved, at one stage or the other, in the decision to terminate Reeves' employment.

Only one of those persons, Powe Chestnut, was deemed to have harbored any age-based animus.¹³ Yet it was not Chestnut, but company president Sanderson, who actually fired Reeves, and no evidence of any age-based motivation on her part was presented.¹⁴ Indeed, the appeals court, in finding insufficient evidence of intentional discrimination, noted that Sanderson was herself over fifty years old.¹⁵Sanderson Plumbing Products, however, was held liable for intentional discrimination by the Supreme Court, even though the ultimate decision maker presumably did not mean to fire, nor understood that she was firing Roger Reeves because of his age.

Given the intent requirement, how could such a result have been reached? There are at least two possible explanations. First, one could read the Reeves Court as imposing liability because it believed that, whatever the formal structure used to arrive at the termination decision, the person who in fact made the decision to fire Reeves was Chestnut, the person with the age-based animus. Certainly there is language in the Court's opinion to that effect. The Court pointed to evidence that Chestnut wielded "absolute power" in the company and "was principally responsible for [Reeves'] firing."¹⁶ The Court even referred to Chestnut as the "actual decision maker," even though it was his wife who pulled the trigger.¹⁷

Thus, it is possible to read the Reeves opinion as insisting on evidence that the "actual decision maker" be the individual possessing the requisite intent.¹⁸ It is also possible, although more difficult, to read Reeves as holding that whenever anyone in the decision-making process has expressed discriminatory animus toward the plaintiff, that evidence will support employer liability when a prima facie case and evidence undermining the articulated reason has been presented.¹⁹ But Reeves, we believe, is best read as not confronting directly the difficult question of how to determine whether discriminatory intent is present in cases where multiple actors are involved in the decision making process. By concluding that the individual possessing unlawful animus was also the "actual decision maker," the Reeves Court was able to sidestep this difficult question.

It is a question that has intrigued each of us for some time. How should courts go about deciding whether intentional discrimination has occurred when an employment decision is the result of either a vertical and/or a horizontal decision making process? Answering this question ultimately depends on what the Court means by "intentional discrimination."

There is language in some of the Court's decisions suggesting that an intent to discriminate requires a conscious decision to act on the basis of, if not animus, at least on the basis of an "inaccurate and stigmatizing stereotype."²⁰ But reading the Court's decisions as a whole makes (or should make) abundantly clear that no animus, ill will, prejudice or inaccurate stereotype need be at work.²¹ Rather, a decision consciously premised on a protected characteristic is intentional discrimination, even if benign business objectives, not prejudice, drive the employer's race-based or sex-based decision. Intent, as various commentators have correctly noted, is best understood not as animus but as a causation concept, one that asks whether the plaintiff's race, sex, etc. caused the decision to occur.²²

But must this use of race or sex by a decision maker be conscious for disparate treatment to exist? In other words, must the employer (or its agents) consciously intend to take the protected characteristic into account in making the employment decision at issue? Surprisingly, the Supreme Court has yet to confront this issue head on.²³

As a normative matter, let us be clear. We believe that Title VII should be interpreted, and the Supreme Court's decisions can and should be read, as rejecting a requirement of conscious intent.²⁴ Instead, the intent requirement should simply be viewed as mandating proof of causation. If an employee was treated differently by his employer because of the protected characteristic, or, to put it another way, if an employee's race or sex played a role in the employer's decision, then a disparate treatment claim should exist.²⁵

But to articulate how the Court's disparate treatment decisions should be interpreted is not to say that this is how lower courts are in fact interpreting or applying them. It is the unusual case, to say the least, in which a supervisor's unconscious bias has resulted in disparate treatment liability.²⁶ Indeed, in examining whether disparate treatment has occurred, lower courts continue to search for conscious intent.²⁷

Framing the disparate treatment inquiry as a search for conscious intent, however, under-identifies instances in which an employee or applicant has been denied employment opportunity because of his or her protected group status. People are often not consciously aware of what in fact moves them to act.²⁸Accordingly, race, sex or age may have played a role in a decision without the decision maker's active awareness that it was doing so. Rather than search for evidence of a consciously held bias or motive, as too often occurs, a court should focus the factual inquiry in a disparate treatment case on the question of causation. All the facts and circumstances should be examined to determine whether the protected characteristic played a causal role in the decision. In sum, the disparate treatment inquiry should focus on causation, not conscious discrimination.²⁹

Importantly, we find that thinking about discriminatory motivation in multiple actor situations demonstrates why this must be so. In the vertical decision making context, the question must not be whether the "actual decision maker" harbored discriminatory animus, or even a conscious awareness that race, sex, etc. was motivating the decision. The application of such a rule would require a finding against the plaintiff in too many contexts in which even conscious, deliberate discrimination by an agent of the employer, acting within the course and scope of his employment, had caused the challenged action to be taken. Instead, as we will show, and as various lower courts have recognized, the question should be whether there exists an unbroken chain of causation between the employee's race and the challenged decision.³⁰

With respect to horizontal decision making, where a decision emerges from a...