The character of discrimination law: the incompatibility of Rule 404 and employment discrimination suits.

• Author: Marshall, Lisa

INTRODUCTION I. PROOF OF A VIOLATION II. DISCRIMINATION'S DANCE AROUND 404(B) A. The First "Other Purpose ": Motive B. The Second "Other Purpose": Intent C. The True Purpose in Discrimination Suits: Propensity III. THE CONSEQUENCES OF THE INCOMPATIBILITY A. The Purposes of Rule 404 and the Effects of Propensity Evidence B. The Problematic Effects of an Unacknowledged Exception to the Propensity Ban 1. Incoherent and Unfair Evidentiary Rulings 2. The Bolstering of a Beleaguered Rule C. A Call for Change CONCLUSION INTRODUCTION

The evidence was clear: Bernard Abrams had mishandled the EZ Freight Lines account. A vice president of Lightolier, Inc., Abrams had renegotiated a contract with Freight Lines without putting the modifications into writing. He had misunderstood how certain tariffs would increase Lightolier's liability. He had even accepted gifts--not bribes, he maintained--from the trucking company. Once Freight Lines went bankrupt and its successor filed suit, none of Abrams's denials could prevent Lightolier from incurring considerable embarrassment and close to a million dollars in litigation and settlement expenses. Despite Abrams's satisfactory performance over a decade and a half of employment, Lightolier fired its longtime agent just a week after settling the lawsuit.

Taken alone, this narrative seems to represent an unremarkable chain of events, culminating in a routine, albeit unfortunate, termination of a poorly performing employee. Yet the addition of more facts begins to call this sympathetic interpretation into question. At the time of his termination, Abrams was fifty-nine years old, while his replacement was around forty. A judge of the situation might begin to wonder: Had age influenced the firing? Abrams insisted, moreover, that his employer's prior acts had betrayed a discriminatory character. His supervisor had, for example, made age-based remarks and mistreated other older employees. For Abrams, that evidence was sufficient to refute any suggestion that his termination was in fact due to the Freight Lines fiasco. The actual cause was age discrimination, he alleged, and he sued. (1)

This piecemeal introduction of evidence constitutes a cryptic way to tell a story. Yet it parallels how evidence must be introduced in a courtroom, where proof of an employer's prior discriminatory acts is likely to provide the fact-finders with the most useful insight into the existence of discriminatory animus. Before Abrams produces this same evidence in court, however, he would be well advised not to forget Federal Rule of Evidence 404, which precludes the admission of "[e]vidence of a person's character or a trait of character ... for the purpose of proving action in conformity therewith on a particular occasion." (2) This Rule specifically disallows evidence of "other crimes, wrongs, or acts" to prove the same. It would seem, therefore, to require that Abrams prove his case without bringing his employer's prior acts of discrimination into evidence.

It is not clear that this feat would be possible. The resolution of a lawsuit like Abrams's, brought on the theory of intentional discrimination, turns on a single issue: the employer's mindset. If an employer fires her agent on the basis of an impermissible factor such as his age, then the termination is illegal. So long as those impermissible motives remain absent, however, an employer commits no wrong by terminating an at-will employee, be it for any other reason--or, indeed, for no reason at all. (3) A successful plaintiff must therefore convince the fact-finder that the employer harbored some discriminatory sentiment. Absent a confession by his boss, or some similarly fortuitous form of proof, the plaintiff must turn to the evidence normally most probative of this issue--the employer's prior acts of animus. Yet, again, the effect of Rule 404 seems clear: It prohibits the plaintiff from admitting such evidence for the purpose of proving a propensity to discriminate. The mandates are at odds. What result?

When Abrams v. Lightolier, Inc. went before a jury, the court allowed Abrams to introduce evidence of his employer's other acts to prove a discriminatory attitude. On the basis of this evidence, the jury agreed that age was a "determinative factor" in Abrams's termination, and the court entered judgment accordingly. When the appellate court affirmed in all relevant respects, (4) it never even mentioned the rule of evidence--Rule 404--that seemingly would have gutted Abrams's case, if applied.

Couched in these terms, Abrams may seem in error. Yet this case is no outlier in the field of employment discrimination. On the contrary, courts routinely fail to comply with Rule 404. (5) This incongruity in many cases reflects an unavoidable consequence--and therefore an exceptionally troubling aspect--of the interaction between this central rule of evidence and discrimination law. While at times a plaintiff will be able (at least theoretically) to meet his evidentiary burdens without violating Rule 404, such an occasion is a byproduct only of the multitude of causes of action and the diversity of fact patterns encompassed by discrimination suits. (6) In the prototypical discrimination suit, with the plaintiff relying on the most common forms of evidence, compliance with Rule 404 is difficult and often impossible.

Part I of this Note presents the "individual disparate treatment" model as illustrative of how discrimination suits interact more generally with Rule 404. It then lays out the dilemma: Whenever a plaintiff suffers some adverse employment action, and an employer is unwilling to concede that it committed this action "because of," for example, the plaintiff's "race, color, religion, sex, or national origin," (7) the success of the lawsuit necessarily turns on the fact-finder's interpretation of this ambiguous action. If the fact-finder determines that the employer made its decision for discriminatory reasons, statutes such as Title VII of the Civil Rights Act of 1964 deem the action illegal. Yet such a difficult evidentiary inquiry into the defendant's state of mind virtually always requires reliance on one of the most problematic forms of evidence: a defendant's prior acts. (8) Despite the willingness of courts to assume that this prior act evidence is relevant to a defendant's "motive" or "intent," Part II demonstrates that the logic underlying such reasoning nevertheless requires the fact-finder to rely, with few exceptions, on forbidden propensity inferences. Given the dearth of alternative evidence generally available to the discrimination plaintiff, this class of litigation therefore does more than merely allow plaintiffs to violate the propensity prohibition of Rule 404(b); in many cases it effectively compels them to do so.

While courts' frequent infidelity to Rule 404 has received prior scholarly attention, Part III modifies these criticisms by recognizing that blame in discrimination suits cannot fall on the usual suspects: plaintiffs for successfully camouflaging propensity evidence or judges for tacitly relaxing the Rule. Both condemnations are unrealistic and unfair in light of the fundamental conflict between these discrimination suits and Rule 404. After analyzing the purposes behind Rule 404, this Part then acknowledges that, for discrimination suits, the propensity ban may be less imperative than it initially seems. Instead, the trouble may lie in the application of the Rule itself, as the incongruity between the cause of action and Rule 404 draws an often arbitrary line between propensity evidence that is admitted and that which is excluded. This unattractive result leads to troublesome outcomes in the discrimination context, a weakening of the propensity ban in other areas of the law, and an unjustified bolstering of a deeply problematic Rule. This Note therefore concludes with a call for reform.

1. PROOF OF A VIOLATION

   Abrams brought his suit under the disparate treatment model, one of the oldest and most familiar in what has become discrimination's "onion-like body of law." (9) Such a case involves "the most easily understood type of discrimination" and "the most obvious evil Congress had in mind when it enacted Title VII." (10) It also, significantly, involves difficult evidentiary inquiries into the defendant's mindset, and to that end adopts a burden-shifting framework that systematically narrows the focus of a trial onto this precise issue.

   The disparate treatment model under Title VII therefore provides an ideal window into these Rule 404 issues, and this Note relies on it as an exemplar. To the extent that suits brought under similar statutory and constitutional provisions and evidentiary frameworks raise analogous evidentiary issues, (11) the same Rule 404 tensions confront the litigants.

   The illustrative model proceeds as follows. Title VII bars an employer from making adverse employment decisions "because of" an "individual's race, color, religion, sex, or national origin." (12) The triggering fact pattern is straightforward: An employee suffers some adverse employment action, such as being terminated, and then sues, alleging that the action was a consequence of his employer intentionally discriminating against him on the basis of some impermissible criterion. If he invokes the individual disparate treatment model, as many plaintiffs do, (13) he bears the initial burden of establishing a prima facie case of discrimination, which generally requires showing some variant of the following:

   (i) that [the complainant] belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. (14)

   The burden then shifts to the employer "to articulate some...