This article provides a doctrinal critique of an employment discrimination principle recognized by the courts-the same-actor inference-based on its incongruence with both cognitive psychological research and the social dynamics of the workplace. The same-actor principle, in its most potent form, provides that where the same decision-maker engages in an alleged adverse employment action within a short period of time of making a positive employment decision, such evidence creates a strong presumption that the decision-maker harbored no unlawful discriminatory animus. The same-actor doctrine was first recognized by the Fourth Circuit in Proud v. Stone, in which the court deemed the nature of the hirer-firer relationship significant on the ultimate question of discrimination. The rationale of the Proud court is based on the assumed irrationality of the 'psychological costs" incurred by a decision-maker in hiring and thus associating with workers from a group one dislikes only to take some adverse action against them thereafter. The majority of the federal circuits addressing the issue have adopted the same-actor principle, many endorsing the rationale of Proud with, if not resounding approval, at least passive acceptance. The circuits are split on the weight that should be afforded same-actor evidence, and the Supreme Court has yet to enter the dialogue. Due to the entrenchment of the doctrine within workplace jurisprudence and its debilitating effects on plaintiffs, it bears assessing its effectiveness as a shorthand reference for identifying discriminatory animus and evaluating the ultimate question of discrimination. This article makes the case that the same-actor principle fails to comport with the realities of the contemporary workplace, specifically, its complexities in structural, cultural, and managerial terms. Expanding on the observations of a small number of scholars, this article enhances the inquiry by engaging social science (including cognitive psychological research), organizational behavior, and management theory literature relating to organizational design and the workplace decision making process. By informing examination of the doctrine with these interdisciplinary sources, the article interrogates the underlying psychological assumption of the same-actor principle, demonstrating its incompatibility with contemporary work life and notions of equality under employment discrimination jurisprudence. Due to the historical, social and cultural contingency of law in society, the problematic nature of the same-actor principle is best revealed by drawing on insights from disciplines devoted to the study of corporate culture, human behavior, and power dynamics within organizations. The article posits that the same-actor inference is anchored in an outdated narrative of the American workplace and an inaccurate view of human motivation.
Immunity for Hire: How the Same-Actor Doctrine Sustains Discrimination in the Contemporary Workplace, 40 CONN. L. REV. 1117