The Same-Actor Inference of Nondiscrimination: Moral Credentialing and the Psychological and Legal Licensing of Bias

The Same-Actor Inference of Nondiscrimination: Moral Credentialing and the Psychological and Legal Licensing of Bias

One of the most egregious examples of the tension between federal employment discrimination law and psychological science is the federal common law doctrine known as the same-actor inference. When originally elaborated by the Fourth Circuit in Proud v. Stone, the same-actor doctrine applied only when an “employee was hired and fired by the same person within a relatively short time span.” In the two decades since, the doctrine has widened and broadened in scope. It now subsumes many employment contexts well beyond hiring and firing, to scenarios in which the “same person” entails different groups of decision makers, and the “short time span” has been elastically extended over seven years. Per the same-actor doctrine, when a supervisor first behaves in a way that benefits an employee and then subsequently takes adverse action against that employee, many federal courts conclude that the supervisor’s adverse treatment is presumptively nondiscriminatory, adopting the strong inference that the supervisor’s negative employment decision was not motivated by bias.

This Article concludes that this doctrine should be curtailed. Given the dearth of textual support and legislative history supporting the creation of the same-actor doctrine, the striking growth rate of this unjust doctrine in circuits that apply the strong-inference standard, and the psychological science amassed that powerfully reveals the errors laden within the doctrine, federal courts should reevaluate their existing jurisprudence on the same-actor inference. Ultimately, this Article recommends that federal courts resolve the existing circuit split by adopting the approach of the U.S. Court of Appeals for the Seventh Circuit. Fundamentally, same-actor evidence should be one evidentiary datum for the ultimate trier of fact to weigh along with all other possible evidence of discrimination.


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