Whose motive matters?: Discrimination in multi-actor employment decision making

Louisiana Law Review

Volumn 61, Issue 3, 2001, Pages 495-537

  White, Rebecca Hanner ^a   Krieger, Linda Hamilton ^b  

^a UNIVERSITY OF GEORGIA   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

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EID: 26044452979     PISSN: 00246859     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (265)

1. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097, 2111 (2000).
2. 530 U.S. 133, 120 S. Ct. 2097 (2000).
3. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1994); Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(1999); Americans with Disabilities Act, 42 U.S.C. § 12112 (2000). The statutes also prohibit discrimination by labor organizations and employment agencies, but the focus here, as is true in the vast bulk of the reported cases, is on discrimination by employers.
4. Title VII and the Americans with Disabilities Act define employers to include those "with 15 or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 2000e(b)(1994); 42 U.S.C. § 12111 (5)(A) (2000). The ADEA covers employers with 20 or more employees. 29 U.S.C. § 630(b)(1999).
5. Vicarious liability imposes liability on an employer for the acts of its agents. See W. Page Keeton et al, Prosser and Keeton on the Law of Torts §§ 69-70, at 499-508 (5th ed. 1984). See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998) (discussing the rationale for imposing vicarious liability on employers in employment discrimination cases).
6. Martha S. West, Gender Bias in Academic Robes: The Law's Failure to Protect Women Faculty, 67 Temp. L. Q. 67, 130 (1994) (noting Supreme Court's focus on single decision makers in employment discrimination cases).
7. Charles A. Sullivan, Accounting for Price Waterhouse: Proving Disparate Treatment Under Title VII, 56 Brook. L. Rev. 1107, 1138 (1991) ("In reality, many employment decisions involve multiple decisionmakers, either in a collegial or a hierarchical structure."); West, supra note 6, at 130, pointing out that faculty personnel decisions "are the result of a process where often no specific individual's intent is either discernible or can be labeled as a 'motivating factor' causing the decision to be made."
8. 530 U.S. 133, 137, 120 S. Ct. 2097, 2103 (2000).
9. Id. at 143, 120 S. Ct. at 2106.
10. Id. at 144, 120 S. Ct. at 2107.
11. Id. at 152, 120 S. Ct. at 2111.
12. Id. at 144, 120 S. Ct. at 2107.
13. Id. at 151, 120 S. Ct. at 2110. Chestnut was alleged to have told Reeves that he "was so old [he] must have come over on the Mayflower," and that he "was too damn old to do his [job.]" The statements, however, were not made in the context of Reeves' termination and thus were viewed as circumstantial, not direct, evidence of discrimination.
14. Nor did plaintiff allege that the two other individuals (Jester and Whitaker) involved in the recommendation that he be fired were motivated by his age. Id. at 139, 120 S. Ct. at 2104.
15. Id.
16. Id. at 151-52, 120 S. Ct. at 2110-11
17. Id. In describing Chestnut as the "actual decisionmaker," the Court pointed to the fact that he was married to the person who made the "formal decision" to fire Reeves. The thinly veiled suggestion was that Sanderson was a mere figurehead, while her husband was essentially calling the shots.
18. The Court does refer to Chestnut in this fashion at several places in the decision. Moreover, in finding sufficient evidence to support the jury verdict in Reeves' favor, the Court coupled the statements indicating Chestnut's age-based animus with evidence that Chestnut "was principally responsible for petitioner's firing." Id. at 151, 120 S. Ct. at 2110.
19. It is difficult to assert that the Court so held because of the repeated references to evidence of Chestnut's role as the "actual decision maker." However, the Court did hold that a prima facie case, together with evidence that the proffered justification is false, may permit a fact finder to conclude that the employer unlawfully discriminated. Statements reflecting animus by anyone involved in the decision-making process, whether or not they were the "actual decision maker," would serve to strengthen a plaintiff's case.
20. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 113 S. Ct. 1701, 1706 (1993).
21. See infra notes 37-48 and accompanying text.
22. See Evan Tsen Lee & Ashutosh Bhagwat, The McClesky Puzzle: Remedying Prosecutorial Discrimination Against Black Victims in Capital Sentencing. 1998 Sup. Ct. Rev. 145;
23. Mary Ellen Maatman, Choosing Words and Creating Worlds: The Supreme Court 's Rhetoric and Its Constitutive Effects on Employment Discrimination Law, 60 U. Pitt. L. Rev. 1 (1998);
24. Ann C. McGinley, !Viva La Evolution! Recognizing Unconscious Motive in Title VII, 9 Cornell J. Law & Pub. Pol., 415 (2000);
25. Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 Geo. L. J. 279 (1997);
26. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Opportunity, 47 Stan. L. Rev. 1161, 1242-43 (1995);
27. Larry G. Simon, Racially Prejudicial Governmental Actions: A Motivation Theory of the Constitutional Ban Against Racial Discrimination, 15 San Diego L. Rev. 1041, 1065 (1978);
28. David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935 (1989);
29. D. Don Welch, Removing Discriminatory Barriers: Basing Disparate Treatment Analysis on Motive Rather Than Intent, 60 S. Cal. L. Rev. 733 (1987).
30. Lee & Bhagwat, supra note 22, at 154 (Court "has never squarely considered the possibility" that race may have caused a decision to occur without the governmental actor's conscious awareness that it took race into account).
31. Others hold a similar view. Lee & Bhagwat, supra note 22 (reaching similar conclusion in equal protection context); McGinley, supra note 22; Selmi, supra note 22, at 288; Michael Selmi, Discrimination as Accident: Old Whine, New Bottle, 74 Ind. L. J. 1233 (1999); Strauss, supra note 22; Welch, supra note 22.
32. But see Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 324 (1987) (advocating a cultural meaning approach to equal protection adjudications and observing that equal protection cases presently require proof that defendant was consciously aware of his animus or consciously intended to discriminate);
33. Amy L. Wax, Discrimination as Accident, 74 Ind. L. J. 1129 (1999) (acknowledging Court's decisions may be construed to permit recovery for "unconscious discrimination" but contending that employers should not be held liable for unconscious discrimination by their agents).
34. Krieger, supra note 22 at 1242-43 (advocating a causation-based approach and arguing that it could be implemented without amending Title VII). Various other commentators claiming that intent is a causation driven inquiry have argued that "unconscious" discrimination is presently actionable. See Lee & Bhagwat, supra note 22; McGinley, supra note 22; Selmi, supra note 22; Strauss, supra note 22; Welch, supra note 22. Whether the protected characteristic need be the "but-for" cause or need only have played a motivating role depends upon the statutory claim at issue. See infra notes 63-68 and accompanying text.
35. See infra notes 77-79 and accompanying text.
36. See infra notes 69-85 and accompanying text.
37. A substantial body of empirical evidence supporting this claim is described in Krieger, supra note 22, at 1213-16.
38. See sources cited supra notes 22-24.
39. See infra notes 97-136 and accompanying text.
40. See Lee & Bhagwat, supra note 22, at 154. ("The argument in favor of a purely causation based approach to intent, powerful as it is when applied to individual governmental decisionmakers, becomes overwhelming when the government conduct at issue is the product of collective decisionmaking, as many discriminatory state policies are.").
41. See infra notes 221-28 and accompanying text.
42. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 97 S. Ct. 1843, 1854-55 n.15 (1977).
43. Id. at 335-36, 97 S. Ct. at 1854-55 n.15 ("Claims of disparate treatment may be distinguished from claims that stress 'disparate impact.' The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive, we have held, is not required under a disparate-impact theory.").
44. The Court's habit of equating the terms occurred in cases arising under the National Labor Relations Act and has continued under Title VII and the ADEA. Since the Court uses the terms interchangeably, commentators have as well. See Thomas G.S. Christensen & Andrea H. Svanoe, Motive and Intent in the Commission of Unfair Labor Practices: The Supreme Court and the Fictive Formality, 77 Yale L. J. 1269 (1968); Welch, supra note 22, at 763-64.
45. See Mark C. Weber, Beyond Price Waterhouse v. Hopkins: A New Approach to Mixed Motive Discrimination, 68 N.C. L. Rev. 495, 498 (1990); Welch, supra note 22, at 738.
46. See Strauss, supra note 22, at 962-65.
47. 435 U.S. 702, 98 S. Ct. 1370 (1978).
48. Id. at 711, 98 S. Ct. 1377
49. 499 U.S. 187, 111 S. Ct. 1196 (1991).
50. Id. at 199, 111 S. Ct. at 1203-04. This argument had been accepted by three circuits, despite the facially discriminatory nature of fetal protection policies. See International Union, UAW v. Johnson Controls, 886 F.2d 871 (7th Cir. 1989), rev'd. 499 U.S. 187, 111 S. Ct. 1198 (1991); Hayes v. Shelby Mem'l Hosp., 726 F.2d 1543 (11th Cir. 1984); Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982).
51. 499 U.S. at 199, 111 S. Ct. at 1203-04. See also Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91 S. Ct. 496 (1971) (employer's refusal to hire women with young children unlawful, even though no hostility or animus toward women existed).
52. See McGinley, supra note 22, at 480 (noting escalation of this trend). See also Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Bias After Affirmative Action, 86 Cal. L. Rev. 1251, 1311 (1998) (noting tendency to view discrimination as stemming from hostile animus).
53. EEOC v. Joe's Stone Crab, Inc., 969 F. Supp. 727, 731-33 (S.D. Fla. 1997), vacated and remanded, 220 F.3d 1263 (11th Cir. 2000).
54. 220 F.3d at 1283-84 n.19 ("[W]e believe the district court's conclusion that the EEOC has not met its burden of proving intentional discrimination may have been based on an erroneous view of Title VII case law . . . . We emphasize that a finding of disparate treatment requires no more than a finding that women were intentionally treated differently by Joe's because of or on account of their gender. To prove the discriminatory intent necessary for a disparate treatment or pattern or practice claim, a plaintiff need not prove that a defendant harbored some special 'animus' or 'malice' towards the protected group to which she belongs . . . . Several ambiguous phrases in the district court's opinion suggest that the district court may have been operating under this erroneous view.").
55. 42 U.S.C. § 2000e-2(k)(2) (1994).
56. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 120 S. Ct. 2097, 2110 (2000).
57. Not all intentional discrimination by an employer, however, is unlawful. An employer that intentionally discriminates may avoid liability if it can establish that sex, national origin, or religion is a bona fide occupational qualification for the job at issue. There is no BFOQ for race. See 42 U.S.C. § 2000e-2(e)(1) (1994). The BFOQ affirmative defense is extremely narrow. See International Union v. Johnson Controls, Inc., 499 U.S. 187, 202-04, 111 S. Ct. 1196, 1205-06 (1991) (rejecting BFOQ defense in fetal protection case). Additionally, an employer may take race or sex into account in making employment decisions when it does so under a lawful affirmative action plan. Such a use of race or sex is not considered unlawful discrimination within the meaning of Title VII. Johnson v. Transportation Agency of Santa Clara County, 480 U.S. 616, 107 S. Ct. 1442 (1987).
58. Personnel Administrator v. Feeney, 442 U.S. 256, 278-79, 99 S. Ct. 2282, 2304-05 (1979).
59. Id. See Selmi, supra note 22, at 292, who reads Feeny as adopting causation as the standard for intent; Lee & Bhagwat, supra note 22, at 152 (same).
60. 442 U.S. at 279, 99 S. Ct. at 2305. While the obvious impact of an action on a protected group may be powerful evidence that the defendant acted to achieve that impact, the impact is merely evidence of unlawful motive, not the functional equivalent of it.
61. There are significant differences in the procedural aspects of such claims, but the substantive aspects of purposeful discrimination appear to be the same. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993). See Harold S. Lewis, Jr., Civil Rights and Employment Discrimination Law 342-43 (1997) (noting courts have considered that purposeful discrimination under equal protection clause and Title VII to be equivalent and collecting cases). The Court, however, has rejected the use of disparate impact theory under the equal protection clause. Washington v. Davis, 426 U.S. 229, S. Ct. 2040 (1976).
62. 42 U.S.C. § 2000e-2(a)(1) (2000) ("It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin"); 42 U.S.C. § 12112 (2000) ("No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual. . . ."); 29 U.S.C. § 623 (a)(1) (1998) ("It shall be an unlawful employment practice for an employer. . . to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's age.").
63. See sources cited supra note 22. As recently noted by Professor McGinley, the intent element in employment discrimination cases is not a state of mind element as in tort law but instead "plays the same role as but-for causation." McGinley, supra note 22, at 477-79. See also Rebecca Hanner White, Modern Discrimination Theory and the National Labor Relations Act, 39 Wm. & Mary L. Rev. 99, 140-44 (1997) (contrasting the causation based approach to intent under Title VII with the animus based approach to intent under the NLRA).
64. 490 U.S. 228, 109 S. Ct. 1775 (1989). Although agreeing that Price Waterhouse made clear that intent is causation driven, Professor Maatman criticizes the Court for failing to define what "because of" means. Maatman, supra note 22, at 2.
65. 490 U.S. at 244-45, 259, 262, 109 S. Ct. at 1791-92, 1806.
66. Although the plurality did not read the terms "because of" as requiring a showing of "but-for" causation, but only that the protected characteristic be a motivating factor in the employment decision, it did permit an employer to avoid liability by establishing it would have reached the same decision even if it had not taken the protected characteristic into account. Id. at 240-41, 109 S. Ct. at 1797. This effectively endorsed a but-for test of liability, as Justice Kennedy's dissent correctly noted. Id. at 281, 109 S. Ct. at 1828 (Kennedy, J., dissenting). See Sullivan, supra note 7, at 1126 n.67.
67. Id. at 287, 109 S. Ct. at 1834 (Kennedy, J. dissenting).
68. 509 U.S. 502, 113 S. Ct. 2742 (1993).
69. 513 U.S. 352, 115 S. Ct. 879 (1995).
70. Id. at 359-60, 115 S. Ct. at 886.
71. 523 U.S. 75, 118 S. Ct. 998 (1998).
72. See Paul A. Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Motivation, 1971 Sup. Ct. Rev. 95, 115-24;
73. Paul J. Gudel, Beyond Causation; The Interpretation of Action and the Mixed Motives Problem in Employment Discrimination Law, 70 Tex. L. Rev. 17 (1991); Krieger, supra note 22, at 1242; Selmi, supra note 22, at 288-91.
74. 42 U.S.C. § 2000e-2(m) (2000).
75. Michael J. Zimmer, The Emerging Uniform Structure of Disparate Treatment Litigation, 30 Ga. L. Rev. 563, 600-09 (1996).
76. See Curley v. St. John's Univ., 19 F. Supp.2d 181, 189 (S.D.N.Y. 1998). Left to be determined in cases in which Section 703(m) applies is what is meant by "a motivating factor." See Gudel, supra note 63, at 39 (referring to a "motivating factor", as a "shadowy concept that lies somewhere between 'but-for' and 'mere presence of a biased attitude.'"). Will the protected characteristic be a "motivating factor" only if it is a sufficient reason for a decision? Professor Michael Wells advocates such a test for free speech cases in lieu of a "but-for" causation model. See Michael Wells, Three Arguments Against Mt. Healthy: Tort Theory, Constitutional Torts, and Freedom of Speech, 51 Mercer L. Rev. 583, 588-89 (2000). It has been contended that the legislative history and the wording of Section 703(m) suggests the causal threshhold for a "motivating factor" is "extremely low," with liability present whenever a nexus between the discrimination and a final employment decision exists.
77. Heather K. Gerken, Note, Understanding Mixed Motives Claims Under the Civil Rights Act of 1991: An Analysis of Intentional Discrimination Claims Based on Sex-Stereotyped Interview Questions, 91 Mich. L. Rev. 1824 (1993).
78. See, e.g., Fuller v. Phipps, 67 F.3d 1137 (4th Cir. 1995); Robert Belton, Mixed Motive Cases in Employment Discrimination Law Revisited: A Brief Updated View of the Swamp, 51 Mercer L. Rev. 651, 661-62 (2000) (describing conflict in the courts over whether Section 703(m) applies only in direct evidence cases). This approach requires resolving the complicated issue of what constitutes "direct" evidence. As Professor Belton notes, "[a]lthough the courts generally agree that plaintiffs must introduce direct evidence of a 'motivating factor' under Section 703(m), they have about as many definitions of 'direct evidence' as they do employment discrimination cases." Id. at 662. For an interesting approach to the question of what is "direct evidence," see Wright v. Southland, 187 F.3d 1287 (11th Cir. 1999) (J. Tjoflat).
79. Section 703(m) amends only Section 703 of Title VII and not Section 704, in which the antiretaliation provision is located. Thus, it has been held inapplicable to claims under Section 704. See McNutt v. Board of Trustees of Univ. of Illinois, 141 F.3d 706 (7th Cir. 1998); Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997); Tanca v. Nordberg, 98 F.3d 680 (1st Cir. 1996). The ADEA and Section 1981 were not amended in response to Price Waterhouse, and courts have continued to apply Price Waterhouse to mixed motive cases arising under those statutes. See, e.g., Lewis v. YMCA, 208 F.3d 1303 (11th Cir. 2000); Harris v. Shelby County Bd. of Educ., 99 F.3d 1078 (11th Cir. 1996). But see Curley v. St. John's Univ., 19 F. Supp.2d 181 (S.D.N.Y. 1998) (applying Section 703(m) to an ADEA claim).
80. As Professors Lee and Bhagwat explain, although the Court's decision in Personnel Administrator v. Feeney establishes that a conscious awareness of harm is not the equivalent of intent, "Feeney does not exclude the possibility that conscious awareness may be a necessary element of intent." Lee & Bhagwat, supra note 22, at 152.
81. See infra discussion in text accompanying notes 77-79.
82. See e.g., Lawrence, supra note 24, at 304 (observing that disparate treatment doctrine requires proof of conscious awareness of animus); West, supra note 6, at 70 (noting that "only conscious and demonstrable bias is subject to legal sanction"); Krieger, supra note 22 (describing and criticizing courts' interpretation of Title VII as requiring proof of conscious intent to discriminate); McGinley, supra note 22, at 480 (observing that courts are focusing on whether a conscious and often invidious motive was present, despite psychological research demonstrating that intergroup bias is often unconscious).
83. 487 U.S. 977, 990, 108 S. Ct. 2777, 2790 (1988) (O'Connor J., concurring) ("[E]ven if one assumed that any such discrimination can be adequately policed through disparate treatment analysis, the problem of subconscious stereotypes and prejudices would remain."). Some lower courts have used this language to support their conclusion that subconscious forms of bias, if they are to be remedied at all, must be addressed through the application of disparate impact theory, not disparate treatment theory. See, e.g., Sperling v. Hoffman-LaRoche, 924 F. Supp. 1346, 1361-62 (D.N.J. 1996) (stating that "unlike disparate treatment analysis . . . disparate impact analysis addresses the effects of unconscious discrimination in addition to conscious or intentional discrimination."); See also Jackson v. Harvard Univ., 721 F. Supp. 1397, 1433 (D. Mass. 1989) (stating that disparate treatment analysis was never designed to police "subconscious stereotypes and prejudices").
84. 507 U.S. 604, 113 S. Ct. 1701 (1993). See Maatman, supra note 22, at 33, who reads Biggins as confining the Court's "vision of discrimination to actions consciously based on inaccurate beliefs about the employee's race, sex, religion, color, national origin, or age." She criticizes the Court's "blame-based rhetoric" as excluding "unconsciously stigmatizing beliefs" from liability. Id. at 63.
85. Maatman, supra note 22, at 30. However the Biggins opinion also described the intent inquiry in terms that were overtly causation based. See infra notes 81-82 and accompanying text.
86. 490 U.S. 228, 250, 109 S. Ct. 1775, 1797 (1989). As Professor Gudel notes, this definition "assumes that the sine qua non of Title VII liabilitiy is a conscious intent to discriminate." Gudel, supra note 63, at 62.
87. See Krieger, supra note 22 (suggesting that this language from Price Waterhouse reflects and reinforces a fallacious notion that employment decision makers have ready access to the reasons why they have made, or are about to make, a particular decision); But see McGinley, supra note 22, at 475 (asserting that the Price Waterhouse plurality "unwittingly expands the definition of intent to include the use of unconsciously or consciously held stereotypes to make employment decisions.").
88. To our knowledge, there exists only one Title VII race discrimination case holding to this effect. Equal Employment Opportunity Comm'n v. Inland Marine, 729 F.2d 1229, 1236 (9th Cir. 1984) (holding that disparate treatment discrimination occurs where decision maker applies subjective employment criteria embodying racially discriminatory attitudes, even absent a conscious intent to discriminate), cert. denied sub nom. Inland Marine Indus, v. Houston, 469 U.S. 855, 105 S. Ct. 180 (1984). One can find a somewhat larger number of sex discrimination cases resolved in plaintiffs' favor on these grounds, including the decision of the D.C. Circuit in Price Waterhouse. See, e.g., Hopkins v. Price Waterhouse, 825 F.2d 458, 469 (D. C. Cir. 1987) (stating that unawareness of bias "neither alters the fact of its existence nor excuses it"), aff'd on other grounds sub nom. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 (1989). See also Lynn v. Regents of the Univ. of Cal., 656 F.2d. 1337, 1343 (9th Cir. 1981) (asserting that "disdain for women's issues . . . is evidence of a discriminatory attitude towards women"); Sweeny v. Board of Trustees of Keene State College, 604 F.2d 106, 113 n.12 (1st Cir. 1979) (sex discrimination case affirming judgment for plaintiff because the district court reasonably concluded that the decision not to promote plaintiff was based on "a subtle, if unexpressed, bias against women"). If dissents are taken into account, one more case can be added to the tally. See Namenwirth v. Board of Regents of Univ. of Wis. Sys., 769 F.2d 1235, 1250-51 (7th Cir. 1985) (Swygert, J., dissenting) (stating "[s]ex bias need not be conscious to be actionable. The most likely explanation for the events at bar is that [plaintiff] was scrutinized by the Department because she was breaking new ground. . . . In short, given [plaintiff's] unhappy role as a pathbreaker, she had to perform better than a male to succeed. Such unequal treatment - however unconscious or subtle - violated Title VII.").
89. We have been able to find only one post-Price Waterhouse disparate treatment case that acknowledged that the unconscious application of cognitive stereotypes may result in discrimination and then, on this basis, ruled for the plaintiff. Thomas v. Eastman Kodak Co., 183 F.3d 38 (1st Cir. 1999).
90. For example, in EEOC v. Cherry-Burrell Corp., 35 F.3d 356, 363 (8th Cir. 1994), the circuit court reviewed a district court decision finding in favor of a Title VII sex discrimination plaintiff on the grounds that the alleged compensation discrimination resulted from subconscious bias. Noting that Title VII "requires a finding of intentional misconduct, not subconscious unlawful action," the Court of Appeals remanded the case to the district court for "clarification" on the question of intent to discriminate. The court's thinly veiled directive to the district court was plain: if you want this decision to stand on appeal, go back and find conscious intent to discriminate. Similarly, in a recent race discrimination case, Ferrill v. Parker Group, Inc., 168 F.3d 468 (11th Cir. 1999), the circuit court conceded that, to prove discriminatory intent, a disparate treatment plaintiff need not show that the defendant harbored some special malice or hostility toward the group to which plaintiff belonged. However, the court stressed that to prevail on remand, the plaintiff would have to prove that the defendant "consciously and intentionally made job assignments based on racial stereotypes." 168 F.3d at 473 n.7 (emphasis added). A similar understanding of actionably discriminatory stereotyping as a conscious rather than subconscious process is displayed in E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263 (11th Cir. 2000). As earlier described, the circuit court premised its decision to remand the case for further findings on the issue of discriminatory intent on the observation that, in hiring food servers, defendant had apparently applied the stereotyped notion that "classy" restaurants employ male waiters, not female waitresses. In providing guidance to the district court, the circuit court was careful to characterize such stereotyping as a conscious process. Specifically, Judge Marcus explained that, "if Joe's deliberately and systematically excluded women from food server positions based on a sexual stereotype which simply associated 'fine dining ambience' with all-male food service, it then could be found liable under Title VII for intentional discrimination. . . ." 220 F.3d at 1284 (emphasis added).
91. 29 U.S.C. § 621 (1988).
92. The A.D.E.A. establishes two tiers of liability. Under the first tier, an employer can be held liable for damages for a simple violation of the Act, which makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or other discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."
93. U.S.C. § 623(a) (1988). Under the second tier, an employer can be held liable for liquidated, or double damages, if it committed a "willful" violation. 29 U.S.C. § 626(b) (1988).
94. Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701 (1993).
95. 869 F.2d 1063 (7th Cir. 1989).
96. Id. at 1066 (quoting Black's Law Dictionary 727 (5th ed. 1979)).
97. Spyvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 155 (7th Cir. 1981) (quoting 113 Cong. Rec. 34, 742 (1967) (remarks of Rep. Burke)). Accord Brooks v. Woodline Motor Freight, 852 F.2d 1061, 1064 (8th Cir. 1988) (citing Spyvock for the proposition that unconscious stereotypes often cause race discrimination); Oxman v. WLS-TV, 846 F.2d 448, 453 (7th Cir. 1988) (same); La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1410 (7th Cir. 1984) (stating that "[a]ge discrimination may be subtle and even unconscious."); McCormistin v. United States Steel Corp., 621 F.2d 749, 754 (5th Cir. 1980) (stressing the subtlety of age discrimination). Various recent applications of this principle can be found as well. See e.g., Oberg v. Allied Van Lines, No. 91-C-6576, 1996 U.S. Dist. LEXIS 4717 (N.D. Ill. 1996) (stating that age discrimination may result from the unconscious application of stereotypes); See also In re Interco, Inc., 211 BR 667, 680 (1997) (age discrimination case adjudicated in federal bankruptcy court finding in plaintiff's favor and observing that "age discrimination is often subtle and may arise from an unconscious application of stereotyped notions of ability.").
98. See supra discussion in text accompanying notes 81-85.
99. Krieger, supra note 22. See also McGinely, supra note 22; Tracy Ambinder Baron, Comment, Keeping Women Out of the Executive Suite: The Court's Failure to Apply Title VII Scrutiny to Upper-Level Jobs, 143 U. Pa. L. Rev. 267 (1994) (asserting that discrimination against women in upper-level positions is "often unintentional and unconscious.").
100. Krieger, supra note 22. See also Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, supra note 43, at 1281 (discussing processes of stereotype acquisition in early childhood).
101. Welch, supra note 22, at 778. As described by Professor Selmi: What the Court means by intent is that an individual or group was treated differently because of race. Accordingly, a better approach is to concentrate on the factual question of differential treatment. In this way, the key question is whether race made a difference in the decisionmaking process, a question that targets causation, rather than subjective mental states. Selmi, supra note 22, at 289. Moreover, as Professors Lee & Bhagwat have explained, in discussing the meaning of intent in equal protection cases, if a plaintiff can prove an action was "because of" his race, "to ask the plaintiff to further prove that the state actor was consciously aware of this factor imposes an almost insurmountable burden of proof (except in the rare instance where the decisionmaker admits the awareness). It also is not clear what policies would be advanced by such a requirement." Lee & Bhagwat, supra note 22, at 154.
102. Strauss, supra note 22, at 960; Selmi, supra note 22, at 291.
103. Strauss, supra note 22, at 939. ("A court applying the discriminatory intent standard should ask: suppose the adverse effects of the challenged government decision fell on whites instead of blacks, or on men instead of women. Would the decision have been different? If the answer is yes, then the decision was made with discriminatory intent." This test, as Professor Strauss notes, reaches both conscious and unconscious discrimination. Id. at 956, 960.
104. See supra notes 64-68 and accompanying text.
105. See supra notes 64-65 and accompanying text.
106. See Krieger, supra note 22, at 1241-42 (suggesting that, under a causation approach to disparate treatment proof, the same evidence used to prove covert intentional discrimination would be used to prove cognitive bias, the primary difference between the two regimes being the inferences drawn from particular facts); Selmi, supra note 22 (recognizing that the Court's proof structure in circumstantial evidence should support a disparate treatment claim in cases involving "subtle or unintentional discrimination."); McGinley, supra note 22, at 447 (asserting that current disparate treatment proof methods "are all capable of holding liable employers who have discriminated unconsciously as well as those who have done so consciously.").
107. McGinley, supra note 22, at 484-85.
108. Id.
109. "Other circuits have recognized that a defendant may be held liable if the manager who discharged the plaintiff merely acted as a rubber stamp, or the 'cat's paw,' for a subordinate employee's prejudice, even if the manager lacked the discriminatory intent." Kendrick v. Penske Transp. Serv., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000) (collecting cases and agreeing with analysis); Willis v. Marion County Auditor's Office, 118 F.3d 542 (7th Cir. 1997).
110. Kendrick v. Penske Transp. Serv., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000); Willis v. Marion County Auditor's Office, 118 F.3d 542 (7th Cir. 1997).
111. 530 U.S. 133, 120 S. Ct. 2097 (2000).
112. 490 U.S. 228, 109 S. Ct. 1775 (1989).
113. Id. See also Anderson v. Bessemer City, 470 U.S. 564, 105 S. Ct. 1504 (1985) (discriminatory statements and actions by some committee members during hiring process supported finding of sex discrimination by city).
114. 922 F.2d 139, 143 (2d Cir. 1990). The Barbano court expressly relied upon Price Waterhouse in reaching this result.
115. Id. at 143. "This knowing and informed toleration of discriminatory statements by those participating in the interview constitutes evidence of discrimination by all those present," said the court, further finding that the discriminatory interview had affected the hiring process, as "the Board's hiring decision was made in reliance upon a discriminatory recommendation." Id. For a discussion of the Barbano case and others like it, see Gerken, supra note 66.
116. 219 F.3d 649, 652 (7th Cir. 2000).
117. Id. at 653.
118. Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394 (7th Cir. 1997); Willis v. Marion County Auditor's Office, 118 F.3d 542 (7th Cir. 1997); Long v. Eastfield College, 88 F.3d 300 (5th Cir. 1996); Abrams v. Lightolier, Inc., 50 F.3d 1204 (3d Cir. 1995); Gusman v. Unisys Corp., 986 F.2d 1146 (7th Cir. 1993); Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051 (8th Cir. 1993); Simpson v. Diversitech Gen. Inc., 945 F.2d 156 (6th Cir. 1991); Jiles v. Ingram, 944 F.2d 409 (8th Cir. 1991); Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990).
119. See, e.g., Willis v. Marion County Auditor's Office, 118 F.3d 542 (7th Cir. 1997) (when the causal relationship between the discriminatory motive of the biased decisionmaker is broken, then ultimate decision to terminate is permissible. Otherwise, the jury may impute motive of the biased subordinate to the company); Long v. Eastfield College, 88 F.3d 300 (5th Cir. 1996) (question is whether chain of causation between supervisor's bias and president's decision was broken); Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990) (liability depends upon whether causal link between supervisor's prejudice and committee's decision has been severed).
120. 118 F.3d 542 (7th Cir. 1997).
121. Id. at 547.
122. Id. See Kendrick v. Penske Transp. Serv., Inc., 220 F.3d 1220, 1232 (10th Cir. 2000) (independent investigation and review broke chain of causation).
123. 142 F.3d 1308 (D.C. Cir. 1998).
124. Id. at 1311.
125. Id. at 1313.
126. Id at 1312. See Santiago-Ramos v. Centennial P.R. Wireless, Corp., 217 F.3d 46 (1st Cir. 2000) (discriminatory statements by those in a position to influence key decision maker may be used to show pretext); Hunt v. City of Markham, 219 F.3d 649 (7th Cir. 2000) (statements made by decision makers or those who provide input into the decisionmaking process are evidence of discrimination).
127. See, e.g., Griffin v. Washington Convention Ctr., 142 F.3d 1308 (D.C. Cir. 1998) (plaintiff's supervisor opposed to women working as electricians); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000) (supervisor doubted women with children being able to do job); Hunt v. City of Markham, 219 F.3d 649 (7th Cir. 2000) (mayor stated city "needed to get rid of all the old white police officers").
128. 142 F.3d 1308 (D.C. Cir. 1998) (supervisor opposed to the idea of women working as electricians).
129. 217 F.3d 46 (1st Cir. 2000) (supervisor did not believe that a woman with a child would be capable of doing the job).
130. 219 F.3d 649 (7th Cir. 2000) (mayor stated that, to solve certain problems, the city "needed to get rid of all the old white police officers").
131. By "normative stereotypes" we mean social role expectations, such as the belief that "women should not be electricians." See Krieger, supra note 43, at 1278.
132. "Cognitive stereotypes" are knowledge structures - implicit expectancies that membership in a particular social group is predictive of past or future behavior, or of particular traits, abilities, or aptitudes. See id.
133. 103 F.3d 1394 (7th Cir. 1997).
134. See Sullivan, supra note 7, at 1139 n. 117("Even if B faithfully reviews A's recommendations, A may be able to skew B's decision by the way in which he presents (or fails to present) data. This may range from putting the preferred 'spin' on the recommendation to fabricating evidence concerning the candidate.").
135. See Kendrick v. Penske Transp. Serv., Inc., 220 F.3d 1220 (10th Cir. 2000).
136. Richard E. Nisbett & Lee Ross, Human Inference: Strategies and Shortcomings of Social Judgment 6-7 (1980).
137. See generally William F. Brewer & Glenn V. Nakamura, The Nature and Function of Schemas, in 1 Handbook of Social Cognition 119 (Robert S. Wyer & Thomas K. Srull, eds. 1984) (providing an overview of schema theory, particularly as it relates to social cognition).
138. See generally Patricia G. Devine, Automatic and Controlled Processes in Prejudice: The Role of Stereotypes and Personal Beliefs, in Attitude Structure and Function 181, 182-84 (Anthony R. Pratkanis et al. eds., 1989) (collecting sources).
139. See also Phyllis A. Katz, The Acquisition of Racial Attitudes in Children, in Towards the Elimination of Racism 125 (Phyllis A. Katz ed., 1976) (describing processes of stereotype acquisition in pre-school age children).
140. See generally Patricia G. Devine, Stereotypes and Prejudice: Their Automatic and Controlled Components, 56 J. Personality & Soc. Psycho). 5, 6-7 (distinguishing stereotypes from beliefs).
141. Devine, supra note 127, at 3-9.
142. H. Andrew Sagar & Janet Ward Schofield, Racial and Behavioral Cues in Black and White Children's Perceptions of Ambiguously Aggressive Acts, 39 J. Personality & Soc. Psychol. 590 (1980) (demonstrating that precisely the same behaviors were interpreted as either "playful" and "friendly," or "mean" and "aggressive," depending on whether the actor was black or white).
143. Myron Rothbart et al., Recall for Confirming Events: Memory Processes and the Maintenance of Social Stereotypes, 15 J. Experimental Soc. Psychol. 343 (1979) (demonstrating that stereotype-consistent information is encoded into memory in a way that makes it easier to recall than stereotype-inconsistent or stereotype-irrelevant information).
144. Myron Rothbart Recall for Confirming Events: Memory Processes and the Maintenance of Social Stereotypes, 15 J. Experimental Soc. Psychol. 343 (1979) Id.
145. See also Nancy Cantor & Walter Mischel, Prototypicality and Personality: Effects on Free Recall and Personality Impressions, 13 J. Res. in Personality 187, 188-92 (1979) (replicating Rothbart, Evans & Fulero and exploring issues relating to retrieval from memory).
146. Galen V. Bodenhausen & Robert S. Wyer, Jr., Effects of Stereotypes on Decision Making and Information-Processing Strategies, 48 J. Personality & Soc. Psychol. 267 (1985) (demonstrating that subjects are more likely to attribute stereotype-consistent transgressions to stable traits, and for that reason tend to judge the transgression as more likely to recur and therefore to impose a harsher penalty than when the same transgression is committed by a non-stereotyped person).
147. John Kihlstrom refers to these functions as the "cognitive unconscious." John F. Kihlstrom, The Cognitive Unconscious, in 237 Science 1445 (1987).
148. The plurality opinion in Price Waterhouse states: The present, active tense of the operative verbs of §703(a)(1) ("to fail or refuse"). . . turns our attention to the actual moment of the event in question, the adverse employment decision. The crucial inquiry, the one commanded by the words of §703(a)(1), is whether gender was a factor in the employment decision at the moment it was made. Price Waterhouse v. Hopkins, 490 U.S. 228, 240-41, 109 S. Ct. 1775, 1785 (1989).
149. Patricia Doyle Corner, et al., Integrating Organizational and Individual Information Processing Perspectives on Choice, in Cognition Within and Between Organizations 145 (James R. Meidl et al., eds., 1996);
150. D.A. Gioia, Symbols, Scripts, and Sensemaking: Creating Meaning in the Organizational Experience, in The Thinking Organization: Dynamics of Organizational Social Cognition 49 (J.P. Sims, et al., eds., 1986);
151. B. Levitt & J. G. Marsh, Organizational Learning, in Annual Review of Sociology 319 (W.R. Scott & J. Black, eds., 1988).
152. Importantly, the degree of causation required under employment discrimination laws, as mentioned earlier, is uncertain and may vary depending upon the statutory claim. Section 703(m) of Title VII requires only that the protected characteristic was "a motivating factor," which appears to remove "but-for" causation as a requisite for liability. See supra notes 64-68 and accompanying text. Some courts, however, limit Section 703(m) only to Title VII claims involving direct evidence of discrimination. Moreover, the motivating factor analysis set forth in Section 703(m) may not be available to any claims other than those arising under Section 703, whether or not direct evidence is involved. B. Levitt & J. G. Marsh, Organizational Learning, Annual Review of Sociology 319 (1988). Id.
153. But see Long v. Eastfield College, 88 F.3d 300, 306 (5th Cir. 1996) (recognizing "the overlap of issues of causation and agency" in determining whether a university could be liable for discrimination when a supervisor with animus recommended termination but the college president who made the decision did not).
154. 220 F.3d 1220 (10th Cir. 2000).
155. Id. at 1223-24.
156. Id. at 1231-32.
157. This statement is limited to the court's analysis of the multiple actor issue. There was additional evidence of race discrimination that appears to have been discounted by the court
158. Id. at 1223-24.
159. Id. at 1231-32.
160. 524 U.S. 742, 118 S. Ct. 2257 (1998).
161. Because the statutes define employer to include "agents" of the employer, the Court was guided by common law agency principles in fashioning its vicarious liability standards. However, the common law served merely as a guide to the Court in developing "a uniform and predictable standard" of vicarious liability under Title VII. 524 U.S. at 760, 118 S. Ct. at 2268. Although Ellerth was a sexual harassment case, the reasoning put forward was not limited to the sexual harassment context, and many of the cases relied upon by the Court in explaining when vicarious employer liability is appropriate were disparate treatment claims not involving sexual harassment. Id. at 752-53, 118 S. Ct. at 2264. Thus, Ellerth's reasoning should be applicable outside the
162. 524 U.S. at 756, 118 S. Ct. at 2266. See also Section 219(1) of the Restatement (Second) of Agency ("A master is subject to liability for the torts of his servants committed while acting in the scope of their employment").
163. 524 U.S. at 757, 118 S. Ct. at 2266.
164. The Court recognized this will generally be true in cases involving sexual harassment, as a supervisor who engages in sexual harassment is unlikely to be motivated in whole or in part by a purpose to serve his employer's interests. Id.
165. "[A] tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer." Burlington Indust., Inc. v. Ellerth, 524 U.S. 742, 762, 118 S. Ct. 2257, 2269 (1998).
166. Id.
167. As the Court stated, "A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors. E.g., Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (noting that the supervisor did not fire plaintiff; rather, the Career Path Committee did, but the employer was still liable because the Committee functioned as the supervisor's 'cat's-paw')." Id. at 762, 118 S. Ct. at 2269.
168. Id. at 759-60, 118 S. Ct. at 2267-68.
169. "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. at 761, 118 S. Ct. at 2268.
170. See Johnson v. Booker T. Washington Broadcasting Servs., Inc., 234 F.3d 501 (11th Cir. 2000) (discussing need for sufficiently adverse action).
171. The employment relationship necessarily aids the supervisor in accomplishing his wrong when a tangible employment action occurs because "there is assurance the injury could not have been inflicted absent the agency relation." 524 U.S. at 761-62, 118 S. Ct. at 2269.
172. Rebecca Hanner White, De Minimis Discrimination, 47 Emory L.J. 1121, 1155-60 (1998).
173. 524 U.S. at 762-63, 118 S. Ct. at 2269.
174. Id. at 764-65, 118 S. Ct. at 2270.
175. "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Id. at 765, 118 S. Ct. at 2270.
176. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000).
177. A potential problem with this analysis, as applied to the Kendrick decision, is that the claim was brought under Section 1981, not Title VII. One need not be a statutory employer to be liable for employment discrimination under Section 1981, 42 U.S.C. § 1981 (2000), which prohibits race discrimination in the making and enforcement of contracts. However, since Kendrick did not sue Tirrell but instead sought to hold his employer vicariously liable for Tirrell's wrongdoing, it is likely the Court would apply the Ellerth rationale for vicarious liability to discrimination claims under Section 1981.
178. 945 F.2d 156, 161-62 (6th Cir. 1991) (Kennedy, J., dissenting).
179. Id. at 162.
180. See Long v. Eastfield College, 88 F.3d 300, 306 (5th Cir. 1996) (recognizing that employer generally not liable for impermissibly motivated actions of co-workers).
181. Id. at 160.
182. See supra notes 155-56 and accompanying text.
183. 953 F.2d 252, 253 (6th Cir. 1992), cert. denied, 506 U.S. 867, 113 S. Ct. 195 (1992).
184. Id. at 254.
185. Id. at 253.
186. Id. at 256.
187. The empirical and theoretical literature on expectancy confirmation bias is vast, and we can not begin to reference all the major contributions here. Interested readers are referred to the following leading sources: Charles G. Lord, et al., Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence, 37 J. Personality & Soc. Psychol. 2098 (1979);
188. Einhorn J. Hillel & Robin Hogarth, Confidence in Judgment: Persistence of the Illusion of Validity, 85 Psychological Review 395 (1978);
189. Mark Snyder & William B. Swann Jr., Hypothesis-Testing Processes in Social Interaction, 36 J. Personality & Soc. Psychol. 1202 (1978).
190. See generally John M. Darley & Paget H. Gross, A Hypothesis-Confirming Bias in Labeling Effects, 44 J. Personality & Soc. Psychol. 20 (1983) (demonstrating how expectancy confirmation bias leads to the reinforcement of social stereotypes);
191. John M. Darley & Rullsel H. Fazio, Expectancy Confirmation Processes Arising in the Social Interaction Sequence, 35 Amer. Psychologist 867 (1980) (same);
192. Mark Snyder, Seek, and Ye Shall Find: Testing Hypotheses About Other People, 1 Social Cognition: The Ontario Symposium 277 (E.T. Higgins, E. P. Herman, & Mark P. Zanna, eds., 1981) (review of literature on hypothesis-confirming strategies used in testing hypothesis about stereotyped others).
193. P.C. Wason & P.N. Johnson-Laird, P. N. The Psychology of Reasoning: Structure and Content (1972);
194. P.C. Wason, On the Failure to Eliminate Hypotheses in a Conceptual Task, 12 Quarterly Rev. of Exp. Psychol. 129 (1960).
195. A useful discussion of the Wason card study can be found in Joshua Klayman & Young-Won Ha, Confirmation, Disconfirmation, and Information in Hypothesis Testing, in Research in Judgment and Decision Making: Currents, Connections, and Controversies 205, 226 n. 5 (William M. Goldstein & Robin M. Hogarth, eds., 1997)
196. See Yaacov Trope & Erik P. Thompson, Looking for Truth in All the Wrong Places? Asymmetric Search of Individuating Information About Stereotyped Group Members, 73 J. Personality & Soc. Psychol. 229 (1997) (subjects provided with category based expectancies about target people went about gathering information to make an independent judgement by asking questions that, by their nature, were more likely to elicit confirmatory versus disconfirmatory information);
197. Snyder, supra note 172, at 282; See also William B. Swann & Toni Guiliano, Confirmatory Search Strategies in Social Interaction: How, When, Why, and with What Consequences," 5 J. Soc. & Clinical Psychol. 511 (1987) (demonstrating that people test their beliefs about others by searching for evidence that confirms those beliefs);
198. Mark Snyder & Nancy Cantor, Testing Hypotheses About Other People: The Use of Historical Knowledge, 15 J. Experimental Soc. Psychol. 330 (1979) (in a social judgment situation, subjects consistently defined the hypothesis testing task as one of preferentially collecting hypothesis-confirming information).
199. See generally, Snyder, supra note 172, at 295-96; Swann & Guiliano, supra note 175, at 522 (study demonstrating that simply entertaining a belief raises the perceived diagnosticity of supportive evidence). See also. Lord, et al., supra note 171, at 2098 (people who hold opinions tend to accept confirming information at face value while subjecting disconfirming information to critical scrutiny).
200. Jennifer Crocker, et al., Person Memory and Causal Attribution, 44 J. Personality & Soc. Psychol. 55 (1983) (discussing attribution and memory processes in relation to expectancy-consistent, expectancy-inconsistent, and expectancy-irrelevant information).
201. Much recent work on expectancy confirmation in social interaction explores the effect of relative power on confirmatory search strategies. These studies consistently find that persons in positions of relative power over their targets are more likely to use confirmatory search strategies than are people with relatively less power over their targets are making judgments about their superiors. See generally Monica J. Harris, et al., Awareness of Power as a Moderator of Expectancy Confirmation: Who's the Boss Around Here, 20 Basic & Applied Soc. Psychol. 220 (1998) (demonstrating the efficacy of perceiver power as a moderator of expectancy confirmation in social judgment);
202. Steven L. Neuberg, Expectancy-Confirmation Processes in Stereotype-Tinged Social Encounters: The Moderating Role of Social Goals, in 7 The Psychology of Prejudice: The Ontario Symposium 103 (Mark P. Zanna & James M. Olson, eds., 1994);
203. Susan T. Fiske, Controlling Other People: The Impact of Power on Stereotyping, 48 Amer. Psychol. 621 (1993);
204. S.T. Fiske & S.L. Neuberg, A Continuum of Impression Formation, From Category-Based to Individuating Processes: Influences of Information and Motivation on Attention and Interpretation, in 23 Advances in Experimental Soc. Psychol. 1 (Mark P. Zanna, ed., 1990).
205. See Yaacov Trope & Miriam Bassok, Information-Gathering Strategies in Hypothesis-Testing, 19 J. Experimental Soc. Psychol. 560 (1983) (finding hypothesis-confirming search strategies where the boundary of the expectancy was extreme).
206. See generally, Susan Bisom-Rapp, Bulletproofing the Workplace: Symbol and Substance in Employment Discrimination Law Practice, 26 Fl. S. U. L. Rev. 959 (1999) (demonstrating employers' ability, through their control of personnel documentation and their access to legal advice, to create a one-sided narrative justifying even an unlawfully biased personnel action).
207. For a thorough discussion of the role of controlled processes in controlling the unconscious effects of stereotypes on social judgment, see Timothy D. Wilson & Nancy Brekke, Mental Contamination and Mental Correction: Unwanted Influences on Judgments and Evaluations, 116 Psychological Bull. 117 (1994); See also Patricia G. Devine, supra note 126.
208. Whether the causation inquiry demands a showing of "but-for" causation depends upon the ultimate interpretation of Section 703(m) of Title VII and the statutory claims to which its reach ultimately extends. See supra notes 64-68 and accompanying text.
209. 42 U.S.C. § 2000e-5(g) (2) (B) (Supp. 2000) ("On a claim in which an individual proves a violation under section 703(m) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court-. . . . (ii.) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A))."
210. See supra notes 64-68 and accompanying text.
211. McKennon v. Nashville Banner Publ'g. Co., 513 U.S. 352, 115 S. Ct. 879 (1995).
212. In this circumstance an employer might be able to avoid liability for the lay off entirely under Section 1981. See supra notes 66-68 and accompanying text.
213. See supra notes 154-56 and accompanying text.
214. See White, supra note 156, for development of this point. However, there are a number of courts that do require an "ultimate" or "materially adverse" job action in employment discrimination cases. Id. at 1135-47. Were the reasoning of these courts to carry the day, the racially caused discipline would not be actionable, leaving plaintiff without a remedy in situations in which the Section 706(g) defense could be satisfied.
215. See Paul Brest, The Supreme Court 1975 Term. Foreword: In Defense of the Anti Discrimination Principle, 90 Harv. L. Rev. 1 (1976); Weber, supra note 36, at 534 (discussing the noneconomic harms of discrimination).
216. Compensatory and punitive damages have long been available under 42 U.S.C. §1981 (2000). See Patterson v. McClean Credit Union, 491 U.S. 164, 182 n.4, 109 S. Ct. 2363, 2375 n.4 (1989). They are now available under Title VII as well, 42 U.S.C. § 1981 (a) (2000). Vicarious employer liability for punitive damages must satisfy the heightened standard set forth in Kolstad v. American Dental Ass'n, 527 U.S. 526, 119 S. Ct. 2118 (1999).
217. See, e.g., Simpson v. Diversitech Gen. Inc., 945 F.2d 156 (6th Cir. 1991); Barbano v. Madison County, 922 F.2d 139 (2d Cir. 1990).
218. 513 U.S. 352, 362, 115 S. Ct. 879, 886 (1995).
219. See supra notes 187-91 and accompanying text.
220. Professor Sullivan points out, "The collegial body obviously does not 'think' at all; its human members have whatever motivations may be relevant for Title VII purposes." Sullivan, supra note 7, at 1139 n.117.
221. Lee & Bhagwat, supra note 22, at 154. See Strauss, supra note 22 (viewing causation, not conscious motive, as the proper way of understanding of intent in the Court's constitutional cases).
222. See Sullivan, supra note 7, at 1154.
223. Id. at 1139 n.117(noting that when "opinion leaders" act from a prohibited motive it may be fair to find the decision wrongfully motivated, even when the "followers" are unaware of the prohibited motive of the leaders); Elena Kagan, Private Speech. Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 440 n.80 (1996) (describing the disproportionate influence some legislators have and the difficulties that poses for determining motive).
224. See, Hunter v. Underwood, 471 U.S. 222, 228, 105 S. Ct. 1916, 1920 (1985) (stating, "[p]roving the motivation behind official action is often a problematic undertaking."). See also United States v. O'Brien, 391 U.S. 367, 383, 88 S. Ct. 1673, 1682 (1968) (stating that "inquiries into congressional motives or purposes are a hazardous matter."). See Kagan, supra note 197, at 438-42 (discussing the difficulties of determining illicit motive in the legislative context; and characterizing O'Brien as standing for the proposition that direct inquiry into motives for restricting speech very rarely will prove productive.").
225. See Kagan, supra note 197, at 442-43; See also Brest, supra note 189, at 120 (suggesting that the search for motive in multiple decision maker cases should be treated the same as when a single decision maker is involved).
226. 471 U.S. 222, 105 S. Ct. 1916 (1985).
227. 471 U.S. at 228, 105 S. Ct. at 1920.
228. 429 U.S. 252, 97 S. Ct. 555 (1977).
229. Selmi, supra note 22, at 304.
230. Id. at 289. Professor Selmi criticizes the Court, however, as too often unwilling to infer discrimination from circumstantial evidence. Id. at 334-35.
231. Kagan, supra note 197, at 439.
232. Id.
233. Id. at 442-43. Professor Kagan argues the rules the Court has developed for analyzing First Amendment claims, much like the presumptions and burdens of proof developed in the employment arena, are aimed at "flush[ing] out bad motives." Id. at 443.
234. Selmi, supra note 22, at 301-02.
235. See supra notes 64-68 and accompanying text for a discussion of the different causation models applicable in the employment discrimination context.
236. West, supra note 6, at 125-26 (noting that academic settings usually involve decision making by multiple committees, and that such a system "does not easily fit under the Title VII theory or structure").
237. 19 F. Supp.2d 181 (S.D.N.Y. 1998).
238. Id. at 184.
239. Plaintiff alleged that one of the committee members, Dr. Giuseppe, asked him why he would want to stay around after he had turned 60 and commented that "when you hit the big 60 you are over the hill." Id. at 185.
240. Id. at 183.
241. Id. at 183.
242. Id. at 192.
243. Namenwirth v. Board of Regents of U. of Wis. System, 769 F.2d 1235 (7th Cir. 1985) (discussing the difficulty of eliminating discrimination in tenure cases). In Namenwirth, despite the fact that the plaintiff was the first woman hired in a tenure track position in her department in thirty-five years and the first person denied tenure by her department, the court found insufficient evidence that sex motivated the decision. See West, supra note 6, at 127 (describing the difficulties female plaintiffs in academic settings have faced, in large part because of the committee structure of decision making, and stating: "These academic cases indicate how difficult it is for a plaintiff to attribute the prejudice shown by the remarks of one member of a decision-making committee to the decision of the committee as a whole, or to the eventual adverse action against the plaintiff.").
244. 114 F.3d 1332 (2d Cir. 1997).
245. Id. at 1338.
246. See Simon, supra note 22, at 1097-1101 (advising courts to look for same forms of circumstantial evidence of group's motives as would be considered in cases involving individual decision maker).
247. Stanley Milgram, Obedience to Authority (1974).
248. As the shock levels and the learner's protests increased, subjects began questioning the experimenter. However, the experimenter, no matter what the subject's question or complaint, was instructed to give one of a small, set number of stock responses, including "Please continue," "The experiment requires that you continue," "It is absolutely essential that you continue," or "You have no other choice, you must go on." The results were stunning. Sixty-two percent of subjects administered shocks all the way up to 450 volts, even after the "learner" had screamed in pain one final time and fallen silent 120 volts earlier. Id.
249. S.E. Asch, Effects of Group Pressure Upon the Modification and Distortion on Judgments, in Groups, Leadership, and Men: Research in Human Relations 177 (Harold Guetzkow, ed., 1951). Asch asked subjects to participate in a study, ostensibly with six other subjects, of visual perception. The other six subjects were in fact confederates working with the experimenter. Subjects were shown a series of two posters. In each case, one poster had a single line on it, while the other poster bore three lines of varying lengths. The single line on the one poster was always quite obviously the same size as one of the three lines on the other. The "subjects," first five of the confederates and then the real subject, were asked to state which of the lines on a three-line poster was the same size as the line on the corresponding one-line poster. Sometimes, they gave the obviously correct answer, but, as the experiment progressed, all six confederates began giving the wrong answers, always with the same ease and assurance as they had while giving correct answers. In the face of five incorrect answers, 80 percent of subjects went along with the five confederates in at least one trial. In the aggregate, subjects went along with the group and gave incorrect responses approximately 30 percent of the time, despite the obviousness of the correct response.
250. For a subsequent description and explication of these studies, see Solomon E. Asch, Opinions and Social Pressure, Sci. Am., Nov. 1955, at 31-35.
251. Sherif's "autokinetic effect" studies are described in Muzafir Sherif, The Psychology of Social Norms 89-112 (1936).
252. See Clayton P. Alderfer, An Intergroup Perspective on Group Dynamics, in Classic Readings in Organizational Behavior, 140, 142 (J. Steven Ott, ed., 1996) (discussing effect of group norms on cognitive formations).
253. See generally, Robert R. Blake, et al., Foundations and Dynamics of Intergroup Behavior, in Classic Readings in Organizational Behavior, 121, 122-23 (J. Steven Ott, ed., 1996) (discussing emergence of group norms in organizational subgroups).
254. See generally, Robert R. Blake, et al., Foundations and Dynamics of Intergroup Behavior, in Classic Readings in Organizational Behavior, supra note 225, at 122-33 (discussing the development of status and power allocation in intra-organizational subgroups).
255. James L. Bowditch & Anthony Buono, A Primer on Organizational Behavior 153 (defining "expedient conformity" as a situation in which a group member expresses attitudes or engages in behaviors that conform to group norms despite holding private beliefs that are at odds with group sentiment).
256. See, e.g., St. Mary's Honor Center v. Hicks, 509 U.S. 502, 508 n.2, 113 S. Ct. 2742, 2748 n.2 (1993) (describing district court's finding that race unlikely to have motivated decision because two members of the decision-making group were black.).
257. 530 U.S. 133, 120 S. Ct. 2097, 2108 (2000).
258. For example, in Namenwirth v. Board of Regents of U. of Wis. System, 769 F.2d 1235 (7th Cir. 1985), the dissenting judge chastised the majority for appearing to insist on conscious bias on the part of a university committee in a tenure denial case. Instead, the dissent asserted, the court should have examined all of the circumstances, including the fact that the plaintiff was the first woman hired in her tenure track position in her department, and the first person denied tenure, in 35 years, in deciding whether plaintiff's sex was a likely explanation for the challenged decision.
259. Reeves, 530 U.S. at 154, 120 S. Ct. at 2112 (Ginsberg, J., concurring). See McGinley, supra note 22, at 485 (advocating advising juries that a prima facie case, coupled with proof of prextext, "can raise an inference that the employer, in evaluating the employee, was either consciously or unconsciously influenced by the employee's race, gender or national origin.").
260. The Ellerth Court rejected the argument that the workplace setting, which provides workers with proximity to each other, is itself a sufficient basis for imposing vicarious liability on the employer for workplace wrongs, whether committed by co-workers or supervisors. "The aided in the agency relation standard, therefore, requires the existence of something more than the employment relation itself." Burlington Indust., Inc. v. Ellerth, 524 U.S. 742, 760, 118 S. Ct. 2257, 2268 (1998).
261. Id.
262. It is the delegation of this authority, the empowerment by the company to inflict this sort of harm, that renders the employer vicariously liable for the agent's action, under the "aided in the agency relation" standard. Id. at 763, 118 S. Ct. at 2269.
263. Id. at 762, 118 S. Ct. at 2269 (emphasis added).
264. 19 F. Supp.2d 181, 192 (S.D.N.Y. 1998). The Court considered the decision to preclude Dr. Curley from teaching graduate classes to be a "materially adverse" action. Whether a tangible employment action must be materially adverse is debatable. See White, supra note 156, at 1154-60. However, a materially adverse action undeniably is a tangible employment action within the meaning of Ellerth. 524 U.S. at 761, 118 S. Ct. at 2268.
265. "If an employer entrusts personnel decisions to persons who act on the basis of impermissible motives, the employer is responsible for the resulting act of discrimination." Fisher v. Vassar College, 114 F.3d 1332, 1371 (2d Cir. 1997) (Newman, J., dissenting).