Berkeley Law

Disparate treatment claims require a finding of an intent to discriminate. The search for discriminatory intent or motive in disparate treatment cases often is envisioned as an attempt to determine whether a supervisor, despite his denials, consciously acted out of bias, animus or on the basis of "inaccurate or stigmatizing stereotypes" in making an employment decision.

Many employment decisions, however, are not made by a single individual. Sometimes, employment decisions are made after a recommendation works its way up a chain of authority. Sometimes, they are made by a committee or group, and sometimes, the decision making process incorporates elements of both. Some of the participants in the decision making process may act for prohibited reasons, while others may act for reasons having nothing to do with a plaintiff's protected class status. In such cases, whose motive matters?

An ultimate decision maker or members of a decision making group may be, and often are, unaware that others involved in the process have based their decisions, in whole or in part, on an employee's protected-group status. Courts facing such claims generally have not considered that unawareness a sufficient basis for depriving a plaintiff of her discrimination claim. Instead, they have examined whether impermissible considerations in one part of the decision making chain caused the action to occur, in whole or in part.

These multiple actor cases provide a useful model for the intent inquiry in individual decision maker situations as well. Just as persons involved in a decision making process may be unaware of the motives of others, individuals, as work in social cognition has demonstrated, are often unaware of their own biases. Implicit stereotypes can influence an individual's decision making in much the same way as an invidiously motivated supervisor can influence the actions of her superiors. In either context, the fact-finder should ask not whether decision makers made conscious use of the plaintiff's group status in the decision making process, but whether the plaintiff's group status caused the challenged decision to be made, in whole or in part.

But causation alone, the article submits, is not a sufficient basis for employer liability. Under principles articulated by the Supreme Court in Burlington Industries v. Ellerth, the action complained of must be attributable to the employer, either directly or vicariously. Moreover, there must exist an unbroken chain of causation between these actions and the harm suffered by the plaintiff.