Pretext in peril.

Author:Martin, Natasha T.
Position:Part 2 - Claims of workplace discrimination
  1. The Same-Actor Doctrine: Origin and Evolution

    1. How It All Began

    The same-actor principle was first recognized by the Fourth Circuit in Proud v. Stone, which held that a strong inference exists that discrimination was not a motivating factor in those instances where the same decision maker terminated the employee within a relatively short time after hiring that individual. (198) The rationale of the Proud court is based on the assumed irrationality of the "psychological costs" incurred by a decision maker in associating with workers from a group one dislikes, only to take some adverse action against them thereafter. (199) That is, a person predisposed against a particular category of people would not have hired one who belongs to that group from the outset. In pronouncing this principle, the Proud court relied on no data points or other guideposts; instead, it made an incredible leap--one that has spawned a virtual cottage industry for employer successes, including summary dismissals, directed verdicts, and judgments as matters of law. (200) Workplace discrimination is already difficult to uncover. Proud further impeded plaintiffs' quest when it proclaimed that the nature of the hirer-firer relationship bears significantly on the ultimate question of discrimination.

    Since the formulation of the same-actor principle in 1991, its evolution has been steady and expansive. The principle has received affirmation from most of the courts addressing the issue, with most endorsing the Proud court's rationale with, if not resounding approval, at least passive acceptance. The circuits are split on the weight that same-actor evidence should be afforded, and the Supreme Court has yet to enter the dialogue. (201) Generally, courts deem same-actor evidence relevant for consideration on summary judgment and significant to their rulings if plaintiffs fail to rebut it, making it particularly difficult for plaintiffs to prove discrimination. More than fifteen years after its formulation, the doctrine is fully entrenched in employment discrimination jurisprudence.

    In my view, the same-actor principle represents well how procedure and substance interact badly to deprive plaintiffs of their chances to take their cases to a jury. Significantly, it provides another stark example of the distortion of the pretext prong under the McDonnell Douglas/Burdine framework, further diminishing the critical inquiry of intent. As discussed more fully below, once an employer inserts same-actor evidence into the case, the court deems it so relevant that it essentially elevates a plaintiff's burden. In fact, courts assign same-actor evidence a weight that a jury may deem unwarranted by drawing the inference that the employer could not have been motivated by unlawful discrimination due to the consistency of the actors involved. Accordingly, I argue that the same-actor doctrine constitutes an untenable analytical paradigm that allows judges to improperly usurp the role of the jury and offers far less with respect to human motivation than its rapid evolution suggests.

    2. Why This Matters: Evolution of the Same-Actor Doctrine

    One may wonder why this doctrine warrants so much attention. In fact, one may argue that dissection of the principle elevates it in the discourse by giving it more consideration than it deserves. I disagree. This doctrine has been largely ignored in the legal academic literature. (202) Despite the dearth of attention, the same-actor principle has been a silent killer of plaintiffs' efforts to sustain claims of discrimination, infesting the substantive law with nonsensical, untheoretically sound assumptions. As its rapid evolution indicates, it has emboldened employers and operated as a straight-jacketing defense against plaintiffs. (203) We should be concerned about how courts activate and misuse their power to manipulate substance through procedure precisely due to the realities of the modern workplace. Additionally, exposing its underlying faulty assumption unearths how discussions of workplace bias are rooted in the hegemonic perspectives upon which much of American antidiscrimination law has evolved. (204) Discrimination has retreated further undeground while its complexity has deepened. As we continue to determine the contours of illegal discrimination in light of social and cultural mores, we cannot allow a "counter evolution" to frame the discussion in an overly simplified and unproductive manner. (205) Thus, it is time to call out the same-actor doctrine for what it is: a sham defense that is subsidized by the judiciary.

    Within five years of the Fourth Circuit's declaration in Proud, its salience was undeniable. Nearly every circuit had recognized and applied some variation of the principle, most with resounding approval of Proud's underlying theme. (206) A minority of these circuits assign same-actor evidence a supplemental role in relation to all other evidence. The majority, however, grant this evidence a more prominent position in the analytical framework, making it particularly difficult for plaintiffs to prove discrimination.

    When the Fourth Circuit established this principle, its formulation delineated seemingly specific parameters for its application. Specifically, in Proud, the court stated that "in cases where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer." (207) Notwithstanding the fundamentally flawed nature of the inference, the court seemed to contemplate a fairly narrow set of circumstances from which a fact-finder could assess discriminatory motivation violative of Title VII. In Proud, the same person both hired and fired the plaintiff within a span of only four months. (208)

    The following year in Lowe v. J.B. Hunt Transport, Inc., the Eighth Circuit extended the interval to two years in another age discrimination case. (209) According to the court in Lowe, the same-actor parameters--"[t]he short time plaintiff worked for the defendant, his age when hired, and the identity of those who hired and fired him"--proved fatal to the plaintiff's age discrimination claim. (210) The court stated, "It is simply incredible ... that the company officials who hired [the plaintiff] at age fifty-one had suddenly developed an aversion to older people less than two years later." (211) Thus, in only a matter of months, courts began expanding the narrow parameters articulated by the Fourth Circuit in Proud.

    Instead of confining the doctrine to a particularized set of circumstances, Proud ignited a phenomenon with far-reaching effects. An overview of some of the most problematic extensions follows.

    a. Time Interval

    Theoretically, the short time interval between hiring and firing presents the most appealing aspect of the doctrine's rationale. Despite the reasons why an employer hires a candidate initially, any negative action taken against that individual by the same decision maker shortly thereafter raises at least a plausible case that discriminatory motive was absent. (212) In my view, it is this aspect of the doctrine that makes it palatable as a starting point for engagement. The persuasiveness of same-actor evidence loses force, however, as the time interval expands. The longer the interval, the more tenuous the argument becomes. While the application of this inference to a short time frame appears reasonable at first blush, courts determine what constitutes a short time interval; that discretionary authority creates the problem. Such malleability leaves room for expanding the circumstances under which the inference applies. (213) While the original expression of the principle involved a shorter time frame, subsequently, courts expanded it to as much as seven years--well beyond the Proud and Lowe standards. (214) Moreover, there exists no consistency regarding what constitutes the appropriate time interval between positive and negative employment decisions. (215)

    b. Same Decision Maker

    At its inception, Proud required consistency in the decision maker, that is, that the hiring and firing be initiated by "the same individual." (216) This element has been significantly broadened as well. Many courts have retreated from requiring the existence of a direct relationship between the decision maker and the employee. (217) Thus, the courts have applied the inference to employment decisions involving multiple decision makers, where more than one individual has input into the worker's fate. (218) Many recent cases present multiple decision-maker scenarios, which mirror the prevalence of teamwork and collective processing in contemporary work settings. (219)

    Ferreting out discriminatory motive becomes a more difficult task when a decision maker receives input data from others regarding an employee. (220) While some courts have acknowledged the intricacies of bias in layered work settings, their awareness has not spurred them to significantly weaken the doctrine. (221) Allowing one decision maker's lack of bias to serve as a proxy for the non-discriminatory motive of another belies the fact-specific inquiry Title VII mandates. It is the courts' job to discern illegal animus through a holistic evaluation of the evidence.

    c. Same Protected Category

    In an equally troubling variation of the decision-maker expansion highlighted above, courts have deemed the inference strengthened when the same actor belongs to the same protected class as the plaintiff (222) or hires another in the same protected category as the plaintiff. (223) The rationale is similar to that of the same-actor inference--that a member of the same protected class is unlikely to harbor bias against one of that class. (224) This seems to be in contravention of Supreme Court authority reflecting that whether the plaintiff and her...

To continue reading