The search for a discriminatory 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 and stigmatizing stereotypes” in making an employment decision. Framing the search for discriminatory motive is this way, however, cannot prove fully effective in eliminating discrimination, as individuals may be unaware of their own biases or the influences those biases have had on their own decision making.
The reality of decision making in the employment area, moreover, is that multiple individuals are often involved in making employment decisions affecting an employee. Just as an individual may be unaware of his own biases, so too, the ultimate decision maker or members of a decision making group may be unaware that others involved in the decision making process have based their decisions, in whole or in part, on an employee's race, sex or other protected characteristic. Importantly, that unawareness generally has not been considered a sufficient basis for depriving a plaintiff of her discrimination claim in these multiple actor cases. This is so because courts have recognized that impermissible considerations of protected group status in one part of the decision-making chain may cause a job action to occur, even though other participants were unaware that protected status had played a role in the process.
This causation based inquiry in multiple actor cases usefully informs how discriminatory intent or motive is best understood in any decision making context. In cases involving a single decision maker, as in those involving multiple decision makers, the question should not be whether a conscious use of race, sex or age has been injected into the decision making process. Instead, it should simply be whether the employee's race, sex, or other protected characteristic has played a causal role in the decision making process. If so, then a disparate treatment claim should exist, so long as that causal link may be attributed to the employer, directly or vicariously. Understanding the interplay and importance of both causation and vicarious liability provides a meaningful way of thinking about the intent requirement in disparate treatment claims, whether in the individual or multiple actor context.
Rebecca H. White and Linda Hamilton Krieger,
Whose Motive Matters? Discrimination in Multi-Actor Employment Decision Making
Available at: https://digitalcommons.law.uga.edu/fac_artchop/483