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Whose Motive Matters?: Discrimination in Multi-Actor Employment Decision Making

J. Alton Hosch Professor of Law, University of Georgia School of Law. Acting Professor of Law, University of California at Berkeley School of Law (Boalt Hall). The authors would like to thank research assistants Melissa Malcom and Tara Nicole Beasley for their work.

I. Introduction

"The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination."1 This statement by the Supreme Court in Reeves v. Sanderson Plumbing Products2 recites a basic and familiar principle of employment discrimination law. A successful disparate treatment claim requires a finding of an intent to discriminate.

But who must intend to discriminate? One could start with the obvious answer: a statutory employer must possess the requisite intent. Federal employment discrimination statutes, after all, hold only those who meet the statutory definitions of employer, and not the world at large, responsible for employment discrimination.3

Employers, however, particularly those with the requisite number of employees,4 usually are corporate entities who, more often than not, are held vicariously, not directly, liable for employment decisions made by supervisory employees.5 Is it, then, the individual supervisor's intent that matters in disparate treatment cases? That appears to be the accepted view; disparate treatment analysis generally proceeds from the assumption that an individual supervisor has taken a challenged action and then questions whether that supervisor acted with the requisite intent.6

But it is not at all unusual in many employment settings for a particular employment decision to be made not by a single individual but by a number of persons. Sometimes, employment decisions are made after a recommendation works its way up the chain of authority; sometimes employment decisions are made by a committee or other ad hoc group; and sometimes the decision making process includes both.7

The facts in Reeves, for example, present a common scenario. Roger Reeves supervised a production line in Sanderson Plumbing Products's Hinge Room.8After complaints about attendance problems in Reeves's department were made, the company's Director of Manufacturing, Powe Chestnut, ordered an audit.9Following that audit, Chestnut, together with the Vice-President of Human Resources, Dana Jester, and the Vice-President of Operations, Tom Whitaker, recommended to the company's president, Sandra Sanderson, that Reeves be fired.10 Sanderson, who not only was the president of the company but Chestnut's wife,11accepted that recommendation and fired Reeves.12 Thus, the decision making process involved in Reeves' firing involved both a recommendation that went up the chain of command (what we will refer to as vertical decision making) and a recommendation that was itself the product of group action (what we will refer to as horizontal decision-making). At least four people were involved, at one stage or the other, in the decision to terminate Reeves' employment.

Only one of those persons, Powe Chestnut, was deemed to have harbored any age-based animus.13 Yet it was not Chestnut, but company president Sanderson, who actually fired Reeves, and no evidence of any age-based motivation on her part was presented.14 Indeed, the appeals court, in finding insufficient evidence of intentional discrimination, noted that Sanderson was herself over fifty years old.15Sanderson Plumbing Products, however, was held liable for intentional discrimination by the Supreme Court, even though the ultimate decision maker presumably did not mean to fire, nor understood that she was firing Roger Reeves because of his age.

Given the intent requirement, how could such a result have been reached? There are at least two possible explanations. First, one could read the Reeves Court as imposing liability because it believed that, whatever the formal structure used to arrive at the termination decision, the person who in fact made the decision to fire Reeves was Chestnut, the person with the age-based animus. Certainly there is language in the Court's opinion to that effect. The Court pointed to evidence that Chestnut wielded "absolute power" in the company and "was principally responsible for [Reeves'] firing."16 The Court even referred to Chestnut as the "actual decision maker," even though it was his wife who pulled the trigger.17

Thus, it is possible to read the Reeves opinion as insisting on evidence that the "actual decision maker" be the individual possessing the requisite intent.18 It is also possible, although more difficult, to read Reeves as holding that whenever anyone in the decision-making process has expressed discriminatory animus toward the plaintif...

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