"Rather than attempt to discern the source of this animosity, however, the court does no more than conclude that there is enough evidence to support the notion that it is related to plaintiff's race or gender"

FOCUS - 15 of 21 DOCUMENTS

Copyright (c) 2003 Texas Law Review
Texas Law Review

April, 2003

81 Tex. L. Rev. 1177

LENGTH: 36328 words

ARTICLE: The Rise of the Personal Animosity Presumption in Title VII and the Return to "No Cause" Employment

NAME: Chad Derum* & Karen Engle**

BIO: * Law Clerk to Chief Justice Christine Durham, Utah Supreme Court.

** W. H. Francis, Jr., Professor in Law, University of Texas School of Law. We are grateful to Janet Halley, Laura Kessler, Douglas Laycock, Larry Sager, Michael Selmi, and Gerald Torres for their careful reading and thoughtful criticisms of earlier drafts of this piece, to those who attended the University of Texas faculty colloquium presentation, and to Jonathan Cardi, Lisa Godwin, Aimee Pingenot, and Sasha Vaikhman for their research assistance.

SUMMARY:
... Over the years, a gradual, subtle, but significant shift has occurred in the assumptions underlying the burden-of-proof mechanisms that structure Title VII disparate treatment cases. ... The unconscious bias critique thus provides a useful tool for analyzing and understanding the shift to a personal animosity presumption. ... The unconscious bias critique is invaluable in understanding this nexus between personal animosity and discrimination. ... The unconscious bias critique, however, only partly explains the operation of the personal animosity presumption. ... The rise of the personal animosity presumption bespeaks both a judicial inability, or at least refusal, to attend to unconscious bias and an ideological commitment to employment at will. ... If today's unconscious bias critics are correct that many legislators failed to understand unconscious discrimination, those same legislators certainly recognized that subtle discrimination was prevalent and nevertheless opposed a law that sought to bring subtle discrimination within the scope of Title VII. ... The Carter court's explanation that race and gender were unrelated to the adverse employment action is highly susceptible to an unconscious bias critique. ... An unconscious bias approach, then, offers a basis for challenging each of these three judicial moves that facilitate the personal animosity presumption. ... D. Unconscious Bias Meets Employment at Will: The Future of the Personal Animosity Presumption ...

HIGHLIGHT: I. Introduction

A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors... . And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting.

Furnco Construction Co. v. Waters, 1978 n1 Although [the plaintiff] has proven the existence of a crusade to terminate him, he has not proven that the crusade was racially rather than personally motivated.

Hicks v. St. Mary's Honor Center, 1993 n2 Plaintiff has presented no evidence to suggest a [discriminatory& rb; motive... . At most, we could find his supervisor's directive to have been borne of personal animosity, which is not actionable under federal discrimination statutes.

Cooperman v. Solil Management, 2000 n3

TEXT:
[*1179] Over the years, a gradual, subtle, but significant shift has occurred in the assumptions underlying the burden-of-proof mechanisms that structure Title VII disparate treatment cases. While it was long presumed that, in the absence of an employer's unrebutted nondiscriminatory reason, discrimination was the likely motivation for the defendant's challenged action, courts have begun to presume that personal animosity most likely motivated the employer. Hence, the quotations from Hicks and Cooperman above represent the move to replace what we label the Furnco presumption - a presumption of unlawful discrimination - with what we call the personal animosity presumption. That is, while personal animosity is often invoked by judges as well as defendants as an example of a permissible motive for challenged employer actions, it is also becoming a synonym for nondiscrimination. As such, it permits courts to avoid engaging in a close examination of employer motives.

In this Article we both expose and oppose this shift in presumption. We expose it because such a dramatic shift should only be undertaken carefully and consciously. Different presumptions reflect different understandings of the nature of discrimination and of who should bear the burden of proof - significantly affecting Title VII doctrine. We oppose the shift in presumption because it fails to require employers to justify their arguably discriminatory actions, making it almost impossible for many plaintiffs to prove their cases. In effect, it resurrects what we term "no cause" employment.

The much-discussed 1993 Supreme Court decision in St. Mary's Honor Center v. Hicks represents a significant turning point in the shift to a personal animosity presumption. Hicks is critical because the decision both heightened the burden of proof for plaintiffs and suggested that racial and personal animosity were distinct concepts. n4 Indeed, we consider Hicks the paradigmatic "personal animosity" case. The Eighth Circuit Court of Appeals in Hicks reversed a trial court ruling against an employee who had demonstrated that the reasons the employer gave for his dismissal were untrue. n5 The appellate court found that this demonstration, in addition to the plaintiff's circumstantial evidence of discrimination, n6 sufficed as a matter of law to sustain the plaintiff's burden of proving discrimination. The Supreme Court reversed, crediting the district court's finding that the defendant should prevail because "although [plaintiff] has proven the existence of a crusade to [*1180] terminate him, he has not proven that the crusade was racially rather than personally motivated." n7

This Article identifies, chronicles, and attempts to explain the rise of the personal animosity presumption that largely began with the Court's endorsement of the distinction between personal animosity and illegal discrimination in Hicks. In so doing, it locates the rise in a group of cases in which courts accept an employer's assertion that it took the challenged action against the plaintiff due to "personal animosity" or personality conflicts. More commonly, judges simply assert that in the absence of direct evidence of discrimination, personal animosity likely motivated the decisionmaker. n8 The Article studies the shift to the personal animosity presumption through the lenses of two different scholarly approaches to Title VII law that have been expanded, if not developed, in the post-Hicks era. We call these approaches the "unconscious bias " and "employment at will" critiques. n9 The unconscious bias critique largely focuses on the difficulty of proving and even of identifying discriminatory motives and on the Court's assumption in Hicks that personal and racial animosity are concepts capable of separation. The employment at will critique focuses on and criticizes the amount of deference that Hicks gives to employers. Without recognizing the shift in presumption that we identify here, each critique offers a different explanation for Hicks: either the Court failed to understand the complexity of discrimination or it [*1181] was determined to "bury the employment discrimination laws and policies beneath the slab of employers' prerogatives." n10

Although we agree with elements of each account, we argue that neither is sufficient alone to explain the shift. Thus, we aim to demonstrate that the present state of Title VII can only be understood in light of both of these critiques. We deploy and expand upon these critiques to read judicial, legislative, and scholarly debate over the past half-century, from early scholarship on employment discrimination, through the legislative history of Title VII and the Supreme Court's decisions on burden of proof (including the rise and fall of the Furnco presumption), up to the personal animosity cases and contemporary scholarly critiques of Title VII jurisprudence. Each critique, we acknowledge, identifies some of the cracks in, and ongoing disputes over, the foundation of Title VII. But only when brought together, we believe, do they have the power to identify, explain, and oppose the shift to the personal animosity presumption in Title VII litigation. n11

The "unconscious bias" approach to employment discrimination law criticizes the doctrine for its apparent inability to attend to unconscious discrimination. n12 The unconscious bias critique challenges Title VII's search for specific discriminatory intent, arguing that the changing nature of discrimination and the contemporary understanding of the psychology of discrimination suggest that intent is often undiscoverable by plaintiffs, defendants, or courts. At the very least, intent encompasses more than what the employer (or its agent) is thinking at the precise moment that an adverse employment action is taken; that moment has been influenced by a lifetime of societal and workplace stereotypes and biases.

The unconscious bias critique thus provides a useful tool for analyzing and understanding the shift to a personal animosity presumption. n13 It [*1182] suggests that when an employer defends against a charge of discrimination by arguing, that the decisionmaker simply disliked the plaintiff, that defense may in fact reflect a discriminatory bias, albeit an unconscious one. Viewed through this lens, the shift in presumption, because wrongly premised on a distinction between personal animosity and discrimination, excludes significant numbers of worthy claims rooted in unconscious bias. The unconscious bias critique is invaluable in understanding this nexus between personal animosity and discrimination.

The unconscious bias critique, however, only partly explains the operation of the personal animosity presumption. Even with an awareness of the pervasiveness of unconscious bias, courts are loathe to make a legal finding of discrimination in the absence of clear evidence. Thus, we identify another force at work. The employment at will doctrine - the background rule against which Title VII was enacted that permits employers to make hiring and firing decisions for good reasons, bad reasons, or no reason at all - is making a comeback within the doctrine of employment discrimination law. In the reassertion of employment at will, we see an overt shift in the burden-of-proof standards, altering the fundamental formula for who has to prove what, and when, in Title VII cases. Uncomfortable with the Furnco presumption and insistent that Title VII is not a "general civility code," n14 many courts now prefer to risk false-negative over false-positive findings of discrimination. One means of apportioning risk in this way is for courts to refuse to find for plaintiffs even when they demonstrate that an employer's proffered reason is false, attributing the employer's actions to personal animosity, which is assumed to be unrelated to discrimination. We argue that a belief that employers should be able to make decisions for "no cause" (read: personal animosity) underlies this doctrinal shift.

A number of scholars have undertaken what we refer to as an employment at will critique, decrying what they see as the return of employment at will in Title VII litigation. They primarily criticize Hicks and similar cases for granting too much deference to employer prerogatives. We take the approach a step further by reading the personal animosity cases as an attempt to revive the no cause portion of employment at will, which we believe was effectively displaced by the burden-of-proof mechanisms initially devised by the Court.

We use the personal animosity cases to analyze the unconscious bias and employment at will critiques of employment discrimination law, and to suggest their interpenetration. The rise of the personal animosity presumption bespeaks both a judicial inability, or at least refusal, to attend to unconscious bias and an ideological commitment to employment at will.

[*1183] The Article proceeds as follows. Part II briefly describes Supreme Court decisions on Title VII burden of proof and sets forth both an unconscious bias and employment at will reading of the development of the case law. It then sets forth a third reading of the cases, one that takes into account the interrelatedness of the approaches and suggests the need for scrutiny of the legislative history of Title VII on one hand and a look at post-Hicks personal animosity cases on the other. Part III addresses contemporary literature on unconscious discrimination by asking whether Title VII law is incapable of addressing all but "simple" or "overt" discrimination. It argues that at least some legislators and commentators in the 1960s, and even before, had a more complex understanding of discrimination than is generally acknowledged. That is, the ideas of subtle and even unconscious discrimination are not new. More importantly, early Supreme Court doctrine on the burden of proof in Title VII created a burden-shifting mechanism that responded to the difficulties of proving subtle discrimination, which includes discrimination that is hidden from the enforcer as well as that which is unknowable to the discriminator. We read the Court's original burden-shifting mechanism as a nod to the inclusion of each of these forms of subtle discrimination. Part IV examines the extent to which the tension over how to strike a balance between employer and employee interests animated both the design of the statute and the development of the burden-of-proof cases. Although we agree with scholars who criticize the Court for having shifted the balance between employers and employees over the past decade or so, we argue that it has done so largely out of a resistance to requiring employers to explain their decisions. Part V turns to the personal animosity cases, chronicling the rise and explaining the function of the personal animosity presumption. Part V concludes with an example of the inextractability of employment at will from both conscious and unconscious bias by studying how personal animosity played a central role in the development of employment at will as well as in the small-business exemption from Title VII.

II. From McDonnell Douglas to Hicks

A. The Development of the Title VII Burden-of-Proof Doctrine

1.

From McDonnell Douglas to Reeves. - McDonnell Douglas Corporation v. Green n15 was the first Supreme Court case to address the proof mechanism for disparate treatment claims. The case put forward the requirements of the prima facie case n16 which, although they have been altered [*1184] to accommodate various fact situations, are basically still accepted. n17 Once the elements of the prima facie case are met, the Court held that the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its decision. n18 Further case law has fleshed out the requirement, n19 but the burden shift is still accepted in principle, if not in practice. n20 McDonnell Douglas made clear that once the defendant meets this burden of production, the burden shifts back to the plaintiff to "show that petitioner's stated reason was in fact pretext." n21 All subsequent cases have held that the plaintiff bears the ultimate burden of proving discrimination. Supreme Court jurisprudence has, however, struggled over the nature of the ultimate burden and what precisely is meant by pretext.

In 1981, the Supreme Court expounded upon McDonnell Douglas in Texas Department of Community Affairs v. Burdine. n22 When discussing the plaintiff's ultimate burden, the Court noted that the plaintiff could meet the burden "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." n23 Twelve years later, in Hicks, the Supreme Court reversed a circuit court opinion that had held that a mere showing that the defendant's reason was false was sufficient to rule for the plaintiff. n24 In doing so, it acknowledged that it was rejecting the Burdine language quoted above, regarding that language as dictum. n25 The Court maintained that pretext meant pretext for discrimination, and that plaintiffs could only meet their ultimate burden by demonstrating that discrimination was more likely than not responsible for the challenged employer action. n26 Some lower courts began to read Hicks as requiring plaintiffs to demonstrate both that the proffered reason was false and that illegal discrimination motivated the employer to defeat summary judgment. This requirement was commonly called "pretext-plus." n27

[*1185] In response to a split in the circuits over whether Hicks required pretext-plus, n28 the Supreme Court most recently considered the burden of proof in an age discrimination case, Reeves v. Sanderson Plumbing. n29 Relying on language in Hicks that suggested that a plaintiff's prima facie case, along with disproof of the employer's proffered reasons, might be sufficient to support a factual finding of discrimination, n30 the Court reversed the pretext-plus rationale that the Court of Appeals had used to rule against the plaintiff. The Court was careful to say, however, that there would be instances in which a showing that the employer's proffered reason was false would be insufficient to sustain even a jury's finding of liability. n31 While it offered some guidance on when such a showing might lack necessary legal force, the Court did not fully detail the instances in which an employer might prevail as a matter of law. n32 What Hicks made clear is that plaintiffs may no longer win as a matter of law simply by disproving the employer's articulated reason, a position from which Reeves did not retreat. Despite the Hicks majority's insistence that it was not upsetting settled doctrine, n33 Hicks certainly upset what most scholars and all but a few renegade judges imagined was settled doctrine.

2. Hicks and Personal Animosity. - Melvin Hicks was a black male corrections officer who alleged that he was terminated from his job as a shift commander at a halfway house because of racial discrimination. n34 The employer argued that it had not terminated Hicks for discriminatory reasons but rather because of the severity and accumulation of his workplace rule violations. n35 The district court concluded that the employer's explanation for the plaintiff's termination was false; in fact, Hicks was the only supervisor [*1186] disciplined for violating those rules, and "similar and even more serious violations committed by respondent's [white] co-workers were either disregarded or treated more leniently." n36 Nevertheless, the district court concluded that Hicks had not proven that his termination "was racially rather than personally motivated." n37 As noted earlier, the Eighth Circuit reversed the district court and was in turn reversed by the Supreme Court. On remand, the employer changed its legitimate nondiscriminatory reason to personal animosity, but during deposition the supervisors who fired Hicks stated that they harbored no personal animosity toward him. n38 Nevertheless, the Court of Appeals concluded that Hicks had not met his burden of demonstrating that his termination was due to race rather than personal animosity. n39 The remand decision in Hicks is particularly striking because the testimony of the supervisors undermined the argument made by the employer: that the decision to terminate the plaintiff was based on personal animosity. If the original district court opinion in Hicks marked the beginning of the personal animosity presumption, the Court of Appeals decision on remand demonstrates the presumption's power. n40

3. The Furnco Presumption. - In 1978, between McDonnell Douglas and Burdine, the Supreme Court decided Furnco Construction Co. v. Waters. n41 The opinion does not fit neatly into the development of the burden-of-proof scheme but nevertheless has been praised and criticized on various grounds, two of which are important for our purposes. In Furnco, black bricklayers who were denied jobs from Furnco Construction challenged the employer's practice of delegating the hiring of bricklayers to a superintendent who refused to accept any applications at the job site or to train workers. n42 Instead, he chose "only persons whom he knew to be experienced and competent in this type of work or persons who had been recommended to him as similarly skilled." n43 The trial court ruled for the defendants, but the Seventh Circuit Court of Appeals reversed on the ground that the defendants did not put forth a legitimate nondiscriminatory reason for selecting workers in this way. n44 Further, the Court of Appeals outlined a new hiring practice for the employer that it believed would result in the [*1187] hiring of more blacks. n45 The Supreme Court reversed the Court of Appeals for its treatment of the legitimate nondiscriminatory prong of McDonnell Douglas. It criticized the Court of Appeals for suggesting a new hiring practice that, in the Court's opinion, would not "be any less "haphazard, arbitrary, and subjective' than Furnco's method." n46 It added that "courts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it." n47

Because of this deference to employers to structure their own workplaces, even in ways that might result in discrimination, William Corbett sees Furnco as the beginning of employment at will's incursion into Title VII. n48 Yet the at-will doctrine's appearance in this case did not have the deleterious effect that it would in later cases. In Furnco, the Court expanded upon the reasons for the burden-of-proof mechanism in McDonnell Douglas. In doing so, it explained the power of the prima facie case and set forth what Deborah Calloway has called "the basic assumption," n49 and what we refer to as the Furnco presumption:

A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. n50

Furnco thus supports the proposition that the prima facie case, although based on circumstantial evidence, sets up a presumption of discrimination. Perhaps the Court lowered the threshold for an employer to respond to the prima facie case, but it did not upset the requirement that employers give true [*1188] reasons for their actions. Indeed, the court saw the requirement as minimal and not onerous. But more importantly, the Court was willing to presume that discrimination was a likely explanation for disparate treatment. It was not until Hicks that the Court abandoned the Furnco presumption.

B. Three Critiques of the Case Law

This Part briefly sketches the unconscious bias and employment at will critiques of the burden-of-proof cases. It then suggests a reading of the cases that uses each of the critiques to inform the other. The remainder of the Article elaborates upon this sketch by extending the approaches backward through the legislative history of Title VII and forward through the personal animosity cases.

1. Unconscious Bias. - In recent years, a significant amount of Title VII scholarship has focused on what is considered the inability of Title VII to attend to unconscious discrimination. n51 Most scholars writing about this type of discrimination agree that the law is incapable of responding to all but intentional, conscious, and overt discrimination. The existence of less overt, unconscious, or more complex forms of discrimination is thought to be relatively new, emerging after the law had begun to respond to overt forms of discrimination. As such, some consider this discrimination to be "second generation." n52 Amy Wax has described this sense of change as follows: "It is not just that employers are more careful about engaging in overtly discriminatory behavior, or that they guard against open declarations of their prejudiced sentiments. Rather, the bulk of workplace discrimination has taken on an entirely new form." n53 Another commentator has stated that discrimination has gone "underground." n54

[*1189] For most of these scholars, more has changed than simply the method of discrimination. That is, contemporary social psychology offers a better understanding of the operation of discrimination than was available at the time of the Act's passage. Linda Krieger's groundbreaking 1995 article in this area focuses on the development of cognitive theory, arguing that "the assumptions underlying Title VII's disparate treatment theory have been so substantially undermined by social cognition theory that they can no longer be considered valid." n55 For Krieger, the main difficulty with disparate treatment theory is that it presumes that discrimination takes place at the moment a particular employment decision is made. Instead, she argues, "it can intrude much earlier, as cognitive process-based errors in perception and judgment subtly distort the ostensibly objective data set upon which a decision is ultimately based." n56 A recent article by Ann McGinley looks to social science theories of discrimination that suggest that even cognitive theory is incomplete in its understanding of unconscious discrimination and then turns to other psychological and organizational theories about the treatment of race and gender in the workplace. n57 Although she looks at different theories from those that Krieger explores, the gist is similar: "Since the nature of racist and sexist attitudes and behavior have changed since 1964, continuing to define discrimination in an outdated mode will underestimate by a large margin the number of racist and sexist decisions." n58

Both Krieger and McGinley criticize the burden-of-proof cases for failing to appreciate the mechanics of unconscious discrimination. Krieger argues that cognitive theory upsets the Court's current scheme by questioning both whether employers can ever truly identify reasons for their actions and whether discrimination is necessarily invidious. Thus she argues that Hicks was not just "another right wing assault on Title VII protections." n59 Rather, it "developed out of a gradual erosion of confidence in the premises underlying pretext theory itself - in particular, the assumption of rational decisionmaking and the presumption of invidiousness." n60 McGinley views the pre-Hicks cases differently from Krieger, identifying Hicks as a counter-evolutionary move that shifted "away from an emphasis on the purpose of creating economic opportunity for persons of color and women and [*1190] toward ... punishment of only those employers who make adverse employment decisions because of conscious, (and often) invidious attitudes toward members of protected groups." n61 In any event, as Krieger notes, Furnco is problematic to the extent that it assumes that employers will know the reasons for their actions. n62 We argue, however, that the Furnco presumption provides plaintiffs the opportunity to challenge unconscious discrimination. n63

2. Employment at Will. - Over the past decade, a small but constant number of critiques have been aimed at judicial interpretations of Title VII that are seen to revive employment at will. These critiques study how the background rule of employment at will - against which Title VII and other antidiscrimination laws were enacted - continues to affect employment discrimination law. n64

William Corbett and Theodore Blumoff and Harold Lewis, for example, point to an ongoing judicial deference to employers. n65 In their view, Title VII constitutes a significant exception to employment at will, which courts fail to recognize when they put their thumbs on the scale for employers in the inevitable balancing of employer and employee interests under the statute. Corbett sees Hicks as paradigmatic of such illegitimate balancing and as the perpetuation of a trend that he identifies as beginning as far back as 1978 in Furnco. He points to the Court's statement in that case that "courts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it." n66 He then looks at similar language in other cases.

For Ann McGinley and Donna Young, Title VII is an inadequate exception to employment at will. n67 McGinley calls for a reversal of the rule, [*1191] or for "for-cause" employment, n68 while Young would require employers to give a certain amount of notice or pay, depending on employee length of service, before they could terminate employees. n69 Both McGinley and Young assert that Title VII cannot attend to unconscious bias n70 although, according to Young, neither can "for-cause" employment. n71 They call for the elimination of employment at will, albeit in different ways, to solve the problem of unconscious bias. For McGinley and Young, then, the background rule of employment at will is in serious need of repeal. McGinley points to some ways in which the rule influences Title VII doctrine, n72 but for the most part she believes that Title VII simply does not encroach significantly on employment at will.

Unlike those engaging in the unconscious bias critique of discrimination law, the employment at will critique has not, for the most part, been used to confront Hicks and its progeny. Viewed from the employment at will perspective, however, the burden-of-proof cases proceed along a course of increasing deference to employers combined with increasing judicial reluctance to interrogate employers' justifications for their challenged business decisions. Such deference to employers is seen as an illegitimate introduction of employment at will into antidiscrimination law, with Hicks representing the highpoint of such deference. As noted above, Corbett reads the Supreme Court's rejection of the Court of Appeals' remedial measure in Furnco as the beginning of employment at will's entry into the interpretation of Title VII. n73 From this perspective, Congress meant to undermine employment at will when enacting Title VII, but the Supreme Court continually interprets the statute too narrowly, leaving Congress to amend it. n74 For some employment at will critics, the burden-of-proof cases demonstrate that Title VII simply does not provide a significant exception to employment at will. McGinley, for example, advocates "for-cause" employment so that the [*1192] burden would shift to employers to give legitimate - not just nondiscriminatory - reasons for their decisions. n75

3. Unconscious Bias Meets Employment at Will. - We agree with the unconscious bias approach that unconscious bias is pervasive and difficult to prove or even recognize in some instances, but we do not agree with those who assume that unconscious bias is "second generation," or a phenomenon that was not known or understood in the 1960s. Psychological theories might have become more sophisticated over the past 40 years, but history demonstrates that both Congress and commentators in the 1960s were aware that discrimination was not always overt. Indeed, some believed that Title VII should attempt to reach only overt discrimination because unconscious and subtle discrimination were too difficult to prove.

Unconscious bias critics split over the extent to which they believe that early case law attended to unconscious bias. n76 We tend to agree with Ann McGinley, who sees the pre-Hicks cases as responsive to unconscious bias. n77 Yet, while she contends that the Court "unconsciously" created a responsive scheme, we believe that it did so with an understanding of the difficulty of proving both conscious and unconscious bias. In any event, the importance of Burdine in this understanding is not that it forced employers to articulate their legitimate business reasons, but that it permitted plaintiffs to prevail "indirectly" by disproving the reasons. The Court was not concerned that a "true " reason emerge in the proceedings. Rather, following Furnco, it was willing simply to presume that discrimination motivated the employer in the absence of a reason that could pass muster. This is not to say that unconscious bias would always be screened out by the Burdine formulation. But the Court was willing to sweep broadly, finding employers liable for discrimination with no direct evidence of intent.

Unlike the unconscious bias critics, however, we do not believe that altering burden-of-proof mechanisms to respond to unconscious, or at least subtle, bias would necessarily change the tenor of today's case law. n78 It [*1193] would be unlikely to do so without attending to another dynamic at work. That is, the problem is not simply that courts do not understand unconscious bias or that judges themselves are hopelessly unconsciously biased. Rather, many judges quite consciously and deliberately believe that, even under Title VII, they should not interrogate the practices of the private workplace without direct evidence of mendacity.

We therefore view the history and development of Title VII largely through the lens of the employment at will critics. Rather than beginning with the assumption that it is illegitimate for courts to continue to be influenced by the background rule of employment at will, however, we use the legislative history of Title VII to show how the statute was crafted in light of an overt tension between legislators who argued that employers should be permitted to base decisions only on qualifications or merit (which we read as "for-cause") and those who believed that employers should not be restricted at all in their decisionmaking powers (which we read as "at-will").

We then turn to the subsequent case law about burden of proof and show how the struggle continues, with some courts weighing in on the for-cause side and others weighing in on the at-will side. We agree with employment at will critics that courts were more willing to encroach upon what are now considered employer prerogatives in the McDonnell Douglas era than in subsequent cases. We do not agree, however, that any deference to employers is per se illegitimate under the statute. To the extent that the statute created an exception to employment at will by not permitting decisions based on prohibited criteria, part of the role of courts is to define discrimination. How broadly they do so necessarily correlates with how much they believe the statute meant to impinge on employer conduct.

Title VII and early case law did, however, strike at the very heart of one aspect of employment at will. That is, it took away from employers the ability to give no reason for their decisions. Here, we find ourselves in agreement with Richard Epstein, who has argued that the McDonnell Douglas standard significantly eroded employment at will by requiring employers to articulate a legitimate nondiscriminatory reason for their actions. n79 [*1194] This requirement, then, was always at odds with the idea that Title VII was a mere exception to employment at will. It transformed the rule into one in which employers could make decisions for any reason that was not prohibited by Title VII (or any other statutory or common-law exception), but not for "no reason."

Employment at will critics thus far have argued essentially that courts have refused to read the Title VII exception as broadly as it was intended. We expand that argument by showing how employer prerogatives are given significant weight in the personal animosity cases. In addition, however, we read much of the resurgence of employment at will in the resistance of courts, including the Supreme Court, to allow the statute to supplant the "no reason" portion of the rule. n80

Thus, while some commentators locate the resurgence of employment at will in Furnco's refusal to require employers to choose hiring practices that would maximize minority hiring, n81 we find it most evident in Hicks, given that Burdine, which followed Furnco, at least continued to require employers to articulate "true" reasons for their decisions. Moreover, we believe that the language in Furnco that presumes discrimination in the absence of a legitimate explanation serves as an effective tool to address unconscious or subtle bias, as well as to preserve Title VII's elimination of no cause employment. The personal animosity cases show the extent to which general deference to employers and specific resistance to any requirement that employers justify their employment decisions continue to animate judicial analysis.

Just as we use an employment at will approach to question the explanations of the unconscious bias critique, we also do the reverse. We note that eliminating at-will employment would not necessarily attend to unconscious bias. If the unconscious bias critics' skepticism of reason articulation is taken seriously, the for-cause requirement that employers give "legitimate" - in this case merit-or qualification-based - rea sons for their decisions would leave much unconscious bias unchecked. As Donna Young has argued, an antidiscrimination mechanism that would search out such unconscious biases would continue to be required. n82

[*1195]

III. Unconscious Bias Critique

Much contemporary discussion concerning Title VII addresses whether the statute equips the courts with the means to decide claims based on subtle or unconscious forms of discriminatory bias in the workplace. n83 Even though many scholars believe that Title VII should be interpreted to address such claims, they ruefully note that courts rarely interpret it to do so. n84 Unconscious bias critics often attribute this failure, at least in part, to their perception that "the way in which Title VII jurisprudence constructs discrimination, while sufficient to address the deliberate discrimination prevalent in an earlier age, is inadequate to address the subtle, often unconscious forms of bias that Title VII was also intended to remedy." n85 Given the relatively recent accumulation of social science data supporting the unconscious bias theory, some of these scholars presume that both the existence and recognition of these subtle, unconscious, or complex forms of discrimination is something new, or at least "second generation." n86

While contemporary social science data offers valuable insights into the ways in which our understandings of discrimination have changed over time, the recognition that employment discrimination can be subtle and difficult to prove is not entirely new. Indeed, as early as 1949, legal commentators were writing about the problems of subtle discrimination in employment decisionmaking. As such, we contend in this Part that notions of unconscious, or at least subtle and structural, forms of discrimination were available to and considered by a number of legislators and commentators in the 1960s and before. n87 We use insights gained from these histories to argue that the Supreme Court did not unwittingly create a scheme that attended to unconscious discrimination when it formulated the McDonnell Douglas-Burdine framework; rather, the Court understood that discrimination could be subtle, if not unconscious, and was willing to hold employers accountable for it.

Our examination of Title VII legislative history and early case law in this Part has two major purposes. First, it shows that the nature of discrimination [*1196] has not necessarily changed, even if our ability to describe it has progressed. Second, it challenges the notion that the inability of courts to comprehend unconscious bias accounts fully or even primarily for current burden-of-proof schemes in employment discrimination law. Rather, as the next Part argues, a desire to maintain no cause employment plays a significant role.

A. Legislative and Legal Perspectives on Subtle Discrimination in the 1960s Framing Era

An examination of both the legislative history of Title VII and the secondary literature written prior to and contemporaneous with the passage of the Civil Rights Act of 1964 reveals that subtle discrimination was understood in ways that many contemporary scholars have overlooked. Sometimes discussion of subtle discrimination suggests that an employer may be trying to hide its discriminatory motives from others, while other times it implies that the discriminatory motive may not even be apparent to the employer because of unconscious biases. n88 Although the legislative debates more frequently referred to subtle discrimination in the former sense, which would include conscious but intentionally hidden forms of discrimination, evidence of some understanding of unconscious bias was in circulation at the time. Regardless of legislative intent, however, the burden-of-proof mechanism adopted in the McDonnell Douglas era ultimately responded to both notions of subtle bias.

With respect to the legislative history of Title VII, both supporters and opponents of fair employment legislation recognized that addressing discrimination in the workplace would require much more than a mere blanket prohibition of the most obvious forms of discriminatory conduct. Rather than undertake the difficult task of articulating the precise contours of discriminatory conduct that would be actionable under Title VII, Congress was occupied principally with matters of Title VII enforcement. More specifically, the opponents of the bill took aim at the EEOC's ability to enforce Title VII as a way to limit the bill's power; n89 they were not [*1197] particularly preoccupied with what kinds of conduct Title VII would prohibit. In fact, the bill was generally understood to encompass "a broad prohibition that would appear to embrace virtually all aspects of the employer-employee relationship." n90 Thus, although the bill that ultimately passed was referred to by its initial proponents as "mild," n91 "weakened," n92 and "the very least thing we could possibly accept in terms of the effectiveness of this title," n93 the compromises that provoked these characterizations were centered on issues of Title VII enforcement, not on whether the Act could reach beyond direct forms of discrimination to prohibit its subtle or unconscious forms. An analysis of Title VII prepared by the Bureau of National Affairs shortly after the passage of the Act interpreted it as including a broad definition of discrimination. n94

One of the threads running through the commentary and legislative history of the period is the notion that discrimination is a complex concept that includes overt as well as subtle forms of conduct, both of which were implicated by Title VII. To demonstrate how the concept of subtle discrimination worked in the minds of legislators and scholars from that period, we analyze their approaches to three issues: the definition of discrimination, the scope and efficacy of antidiscrimination laws, and the operation of proof mechanisms.

[*1198] 1. Definitions of "Discrimination." - While less voluminous on the matter than one might expect, the legislative history of Title VII appears to endorse a broad definition of discrimination that would reach both overt and subtle forms of conduct. Much legal commentary of the time similarly presumed that the statute could reach subtle, if sometimes intentional, forms of discrimination.

The term "discrimination" is nowhere defined in the statute. The one definition agreed upon in the legislative history was offered in a memorandum prepared by Senators Case and Clark, the respective Republican and Democratic floor managers of Title VII in the Senate. n95 In response to the argument that the concept of discrimination was too vague, n96 the Senators defined discrimination to cover all adverse conduct that was "in any way" based on race, color, religion, sex, or national origin. n97 "To discriminate," the Senators argued, "is to make a distinction, to make a difference in treatment or favor, and those distinctions or differences in treatment or favor which are prohibited ... are those which are based on any five of the forbidden criteria." n98 By leaving the term "discriminate" undefined in the statute, Congress left the determination of what constitutes discrimination to the EEOC and the federal courts. The EEOC was given the power to investigate complaints of discrimination n99 when the Commission had "reasonable cause" to pursue such investigations. n100 The federal courts were left as the final arbiters of employment discrimination claims under Title VII. n101

Perhaps the expression of Congressional intent that is most consonant with an expansive definition of discrimination appears in the Senate's rejection of a proposed amendment to Section 703(a) of Title VII. The amendment, proposed by Senator McClellan, would have limited the scope of the statute to adverse employment actions based "solely" on race, color, religion, sex, or national origin. n102 Senator McClellan was concerned that [*1199] without such an explicit limitation, Title VII would become a "dragnet, a catchall" that would reach conduct far beyond the statute's purposes. n103 Senator Case's comments in successful refutation of the amendment reveal the broad vision of actionable discrimination held by Title VII's supporters:

The difficulty with this amendment is that it would render Title VII totally nugatory. If anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of. But beyond that difficulty, this amendment would place upon persons attempting to prove a violation of this section, no matter how clear the violation was, an obstacle so great as to make the title completely worthless. n104

Senator Case's recognition of the insurmountable burden that plaintiffs would face if forced to prove that an adverse employment action was predicated "solely " on discriminatory motives provides some evidence that Congress understood the difficulty of extricating lawful and unlawful motives and did not intend to protect only those plaintiffs who could prove that they were the victims of deliberate, conscious discrimination. n105 The McClellan amendment was defeated by a vote of fifty to thirty-nine. n106

Although legislators and commentators differed on the question of whether Title VII could or should address subtle forms of discrimination, they were all aware that such forms existed. In discussing the scope of state fair-employment-practice laws that preceded Title VII, the Bureau of National Affairs made an observation about forms of discrimination that, while perhaps not taking into account unconscious discrimination, sounds as though it could have been written by those who argue today that discrimination has gone underground: n107 "Absolute proof of discrimination is next to impossible, except in the clear-cut case where an employer runs a "whites only' help-wanted advertisement or inquires as to race or religion in an [*1200] employment application." n108 Given the absence of such direct evidence and the "difficulties in proving job discrimination," n109 the analysis emphasized that courts must be sensitive to the "subtleties of conduct," which required a "grant of broad power ... to appraise, correlate, and evaluate the facts uncovered." n110

Some writers of the period took a more restricted view of the meaning of discrimination than that suggested above. For example, two commentators in 1965 wrote, "Current racial discrimination normally refers to restrictions against Negroes who are treated differently than whites with the same level of achievement. It takes place when a Negro worker is not promoted or not hired simply because of race when in all other respects he is as qualified as his white competitor." n111 Even these commentators, however, noted that to understand the nature of discrimination in employment one must recognize both its unconscious and structural elements: "Tradition within both the white and Negro communities has been established by historical discrimination. Recruitment practices, advertising, employment agency procedures, promotion criteria, sometimes consciously, sometimes without thinking, often work to the disadvantage of Negro candidates." n112 In terms of the range of existing and potential discriminatory conduct, the gap between 1964 and the present is not as great as the unconscious bias critics imagine.

2. The Scope and Efficacy of Employment Discrimination Law. - The debate and commentary addressing the scope and efficacy of antidiscrimination laws in the years surrounding Title VII's passage also looked at the issue of subtle forms of discrimination. Although these discussions were generally instigated by opponents of the Act or those skeptical of its ability to solve the problem of employment discrimination, they are noteworthy for their recognition of the subtle and complex nature of discrimination.

The difficulties posed by subtle discrimination were recognized specifically in connection with Title VII. In a 1965 article discussing the issues surrounding the passage of the 1964 Act, n113 one writer cited subtle discrimination as the most pressing problem facing Title VII: "While measures can ... reduce discrimination, racial prejudices are likely to persist for a long time. Indeed, the subtle forms of discrimination resulting from the fact that whites make most employment decisions is likely to be more difficult to deal [*1201] with than overt discrimination." n114 Similarly, another commentator on Title VII observed that

As a regulatory problem prevention of discrimination in employment presents difficulties not common to the prevention of more overt forms of discrimination, as in voting, in education, or in public accommodations. Personnel decisions involve a multiplicity of factors, some of them subjective. n115

Rather than attempt to broaden the scope of Title VII to address this difficulty, however, the same commentator argued for limiting its breadth: "There may be situations, however, in which the factors which determine the personnel decision are so subjective that discrimination may be subconscious and therefore "unintentional.'... If [Title VII] exempts such discrimination, the loss is hardly significant since such discrimination would be well-nigh impossible to prove in any given case." n116 Hence, subtle discrimination, conscious or not, was acknowledged but also seen as a serious challenge to the construction of a proof mechanism sufficient to detect it.

Some members of Congress opposed Title VII precisely because they viewed discrimination as a "state of mind" that can always be hidden. In expressing his minority view in the House Labor Committee's 1962 report endorsing fair employment practices legislation, Representative Hiestand argued against such legislation on the grounds that it could not be enforced:

Experience has proven that a state of mind or a matter of conscience cannot be successfully legislated. Even though there is a law and an enforcing agency, discrimination will find a way if the employer, union, or employment agency wishes to discriminate. A Federal agency can be fooled and the spirit of the law can be violated even while the letter of the law is being observed. n117

Rep. Hiestand's emphasis on "state of mind" and "matters of conscience" is significant because of the overt recognition that discrimination is not always an easily identifiable phenomenon. Rep. Hiestand's critique of antidiscrimination legislation recognized the existence of subtle forms of discriminatory conduct, even while he questioned the proposed solution. n118

Perhaps in response to opponents, the Act's supporters acknowledged that the scope of Title VII would necessarily be limited. Even the House Judiciary Committee's Report on Title VII suggests that the purpose of the [*1202] Title was merely to strike at only "the most serious types" n119 of discrimination, not to reach every instance of unfair conduct: "No bill can or should lay claim to eliminating all of the causes and consequences of racial and other types of discrimination against minorities... . However ... Federal legislation dealing with the most troublesome problems will create an atmosphere conducive to voluntary or local resolution of other forms of discrimination." n120 This view arguably suggests that Title VII was intended only to reach direct or obvious forms of discrimination that most easily yield to legislation. On the other hand, the quoted language merely demonstrates that the remedies proposed in Title VII could not guarantee the total elimination of discriminatory conduct. It does not mean that an employer who has been proven to use subtle devices to engage in employment discrimination is beyond the reach of the law.

In the end, by leaving discrimination undefined, the framers of the legislation left it to the EEOC and the courts to determine the scope of Title VII. The legislation itself places no substantive limitation on the ability of courts to hold employers liable for engaging in subtle forms of discrimination. To the contrary, the legislative history of Title VII and the legal commentary of the time lend fair support to the notion that discrimination was understood as a complex phenomenon that could manifest itself in often subtle, sometimes even unconscious, ways. One author writing just two years after the passage of Title VII concisely summarized the point: "Today, discrimination is a great deal more subtle; any statements made are usually equivocal, and the law is or should be capable of adjusting to the new and more difficult subtleties." n121

3. Discussions of Proof Mechanisms. - Because legislators and commentators recognized the prevalence of subtle discrimination, issues of how to prove discrimination were often at the center of antidiscrimination commentary and case law. Indeed, as early as 1949, a Note in the Chicago Law Review recognized that proving the existence of employment discrimination posed the greatest obstacle to the enforcement of antidiscrimination statutes: "While effective enforcement [of antidiscrimination statutes] demands proof of discrimination in individual cases, that an act has been discriminatory is not in all cases susceptible of clear and certain demonstration." n122 Even at that early date, well before Title VII, the author recognized that prohibiting overt employment discrimination could give rise [*1203] to discrimination in other forms: "It is of course true that not all sophisticated methods of discrimination both against the group and the individual can be proved... . The outlawing of the use of a particular standard [of employer decisionmaking] may result in the utilization of subtle devices to conceal the continued use of the outlawed standard." n123 The Note pointed to the difficulty of meeting evidentiary burdens in light of such subtle devices to argue in favor of a standard that shifted the burden to the employer to articulate a nondiscriminatory reason for the adverse action:

While precision and certainty in proof of discrimination may be impossible for the complainant, proof that an action was in fact based on an outlawed standard does not in many cases present such difficulty for the accused. This is true because the reasons for a person's actions lie primarily within his own knowledge. If there has been no discrimination, the defendant can show that there were good reasons for his actions. n124

The critical insight of this early analysis, which foreshadows the test ultimately applied by the Supreme Court in McDonnell Douglas and its progeny, is that laws forbidding employment discrimination could succeed only if they held employers accountable for both direct and subtle forms of discrimination.

Around the time of the passage of Title VII, commentators observed that employment discrimination cases decided under state law emphasized that an examination of subtle and even unconscious forms of conduct was required to prove discrimination. Holland v. Edwards, n125 a 1954 New York Court of Appeals case, is often cited for its concise articulation of the need for the law to reach subtle discriminatory conduct. New York was the first state to pass a comprehensive fair-employment-practices act, n126 and in [*1204] Holland, the Court of Appeals interpreted that law for the first time. n127 In that case, the court faced the question of whether an employment agency discriminated when an interviewer inquired about the national origin of an applicant for a secretarial position based on her name and schooling. n128 In response to the agency's argument that the inquiry did not expressly reflect any "discriminatory purpose or design," Judge Fuld observed that the absence of an explicitly discriminatory motive was not conclusive. n129 Instead, he observed that New York's prohibition of employment discrimination could reach even subtle discriminatory conduct:

One intent on violating the Law Against Discrimination cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive - for we deal with an area in which "subtleties of conduct ... play no small part." n130

In this case, the Holland court used an acknowledgement of subtle discrimination as a means of discrediting the employer's proffered reason, and to uphold the New York legislature's "grant of broad power" to evaluate the facts in each case. n131 Thus, the lesson of Holland is that to make good on the promise of a law forbidding employment discrimination, courts must be willing to conduct a deep inquiry into an employer's challenged actions because unlawful motives do not always rise to the surface.

A Pennsylvania trial court opinion from 1963 insightfully described how proof mechanisms in discrimination cases must operate to detect unconscious discrimination, observing:

It is an unusual feature of laws against discrimination that they require us to deal with the subjective mental state of the recalcitrant. Certainly one should know one's own thinking best, but it is a commonly observed phenomenon that even honest people may be incapable of accurately describing their own purposes where their self interest is concerned. In any event, there could be no enforcement of these laws if we simply accepted the word of the individual involved, regardless of his apparent or known integrity. The subtle influences of racial prejudice affect many otherwise intelligent and religious people [*1205] subconsciously. Therefore, we must look beyond the avowed motivation of the person whose conduct is being scrutinized ... . n132

In emphasizing that antidiscrimination laws are only effective when subtle factors are considered, this analysis resembles the conclusions of the Holland court. But it goes a step further by recognizing a point echoed by unconscious bias critics many years later: Even apparently honest individuals might not know the reasons for their decisions. The court used this recognition as a basis to look beyond the defendant's proffered explanations and into the motivations underlying the conduct being examined.

In discussing Title VII, legal commentators of the period noted that the ability of courts to make the fine distinction between lawful and unlawful conduct was critical to the success or failure of Title VII:

The standards required for proof of discrimination will substantially determine how effectively the rights secured by Title VII are enforced. On the one hand, certain unlawful actions will be on their face indistinguishable from perfectly legal conduct. On the other, conduct motivated by legitimate business considerations may fall within the broad prohibitory language of the statute since any action taken even partially [because of the five prohibited classifications] will in theory violate the act. n133

Recognizing that "the day has long passed when an employee [sic] would tell a job applicant that "we don't hire your people here,'" n134 another commentator addressed the problem of proving discriminatory intent:

Conduct of an employer in any given case can be consistent with good hiring practices, or alternatively, it can be consistent with real discrimination. The problem is, of course, to separate the one from the other. How this is accomplished, and the types of evidence used to establish discrimination, become matters of prime concern. n135

Title VII jurisprudence responded to the difficulties of such line-drawing through the development of burden-of-proof mechanisms.

For more than fifty years, then, legal commentators have recognized that one of the critical tasks for burden-of-proof mechanisms in employment discrimination law is to address subtle forms of discrimination. The problems identified and the proposed solutions of today are not, in this sense, particularly new. Even some of those who opposed Title VII did so in part out of a sense that it was impossible to legislate against subtle or unconscious [*1206] bias. If today's unconscious bias critics are correct that many legislators failed to understand unconscious discrimination, those same legislators certainly recognized that subtle discrimination was prevalent and nevertheless opposed a law that sought to bring subtle discrimination within the scope of Title VII. The law that passed, however, along with early case law interpreting it, created a scheme that attended to subtle, including unconscious, discrimination.

B. Early Case Law

As soon as courts began to interpret Title VII, they were faced with the very issues anticipated by legislators and foreshadowed by state courts interpreting state antidiscrimination laws. This Part situates the early burden-of-proof cases in the historical context described above and reads the cases for their ability to hold employers accountable for unconscious bias.

Ann McGinley and Michael Selmi have both suggested that early Title VII case law was capable of addressing subtle discrimination. For McGinley, however, the coverage was inadvertent. Proof mechanisms designed to identify intentional discrimination "were generally effective in separating discriminatory decisions, both conscious and unconscious, from nondiscriminatory ones." n136 Even though the McDonnell Douglas-Burdine formulation had this effect, McGinley argues that courts were unaware of it, "erroneously assuming that the constructs identified an employer's conscious intent to discriminate." n137 Nevertheless, some courts began to realize "intuitively, but unconsciously" n138 the broad reach of the proof mechanisms, leading to the series of cases about pretext that finally resulted in the Supreme Court's opinion in Hicks. n139

Selmi presents a less detailed analysis of the case law, pointing out that "since 1973, the Supreme Court has consistently held that Title VII prohibits discrimination that is subtle in nature, which the court has also noted on many occasions characterizes most workplace discrimination." n140 For this proposition, he cites McDonnell Douglas n141 and the sex discrimination [*1207] case of Frontiero v. Richardson. n142 Agreeing with Selmi's basic point, we elaborate the argument here.

If discrimination were as overt in the early days as unconscious bias critics often suggest, the cases would be relatively easy to decide. Employers would make decisions that were obviously based on prohibited classifications, and employees would sue them under Title VII. Of course, as soon as the Act was passed, no sensible employer would admit that it based a decision on one of the prohibited classifications. n143 Employers were forced to become more subtle, or structural, in their discrimination, assuming the discrimination was conscious at all. In this context, it is understandable that the Court's first Title VII case, Griggs v. Duke Power, n144 specifically found a cause of action - disparate impact - for unintentional discrimination. The Court shared the insight of many legislators and commentators discussed in the previous Part that even if employers were not intentionally discriminating against minority employees, certain employment criteria ("general intelligence tests" in Griggs) could clearly function to keep traditionally disadvantaged groups disadvantaged. n145 By declaring that unintentional discrimination was actionable under the Act unless justified by business necessity, n146 the Court in Griggs avoided issues about whether the employer intentionally, either consciously or unconsciously, used the tests to keep minorities out of particular jobs. Yet the Court expressed great awareness of the extent to which societal discrimination perpetuated disadvantage in the workplace, and chose to hold employers accountable for that perpetuation. n147

When in subsequent cases the Court turned to intentional discrimination, it was aware that such discrimination would be difficult to prove, and placed on employers the burden of justifying their employment decisions. In McDonnell Douglas, the first Supreme Court case to address burden of proof, the Court stated, "Title VII tolerates no racial discrimination, subtle or otherwise." n148 In that case, the employer claimed that it had refused to rehire a former employee who, after having been laid [*1208] off, engaged in an illegal protest against the defendant for racial bias. n149 Although the Court agreed that the employer had the right to refuse to hire employees for such conduct, it also determined that the plaintiff should be given an opportunity to demonstrate that the reason the employer gave was a pretext. n150 The plaintiff was a civil rights activist, n151 and the Court seemed to understand that the unlawful conduct was not necessarily or easily distinguishable from the plaintiff's complaints about race discrimination. The Court therefore created a framework that permitted plaintiffs to bring claims where the employer's motive was not clear. The framework put the onus on employers to articulate a legitimate nondiscriminatory reason, and subjected that reason to the plaintiff's scrutiny. Perhaps the employer in McDonnell Douglas really did think it made the decision because of the unlawful activity, but the Court invited the plaintiff to present "evidence that white employees involved in acts against a petitioner of comparable seriousness ... were nevertheless retained or rehired." n152 In other words, the plaintiff would not have to show that the employer was lying about the reasons given, only that the employer - consciously or not - did not consistently apply the policy to whites and blacks.

The Court's willingness to presume that illegal discrimination motivated employers' decisions, absent articulation of reasons that could withstand the scrutiny suggested above, is clearly articulated in Furnco. Recall the Court's statement that "we infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations." n153 The Court later quoted this language favorably in Burdine, n154 where the trial court had rejected plaintiff's sex discrimination claim by accepting the employer's rationale that it had terminated three individuals, including the plaintiff, because they "did not work well together." n155 Ruling that the plaintiff should be given an opportunity to demonstrate - either directly or indirectly n156 - that the defendant's reason was pretext, the Court reaffirmed that, in the absence of a legitimate nondiscriminatory reason by the defendant, it was willing to infer from the prima facie case that the defendant's motive was illegal discrimination. Even with such a reason, the plaintiff would have an opportunity to show that the reason was false.

[*1209] Although Furnco has been criticized by some employment at will critics for its refusal to interrogate business judgments, n157 we believe it signaled an important moment in the Court's willingness to presume that disparate treatment was based on racial animus. As Part V will illustrate, this presumption stands in sharp contrast to the personal animosity presumption.

The Court's willingness to infer discrimination from a prima facie case, or from a plaintiff's demonstration that the employer's stated reason was not the true reason for a challenged action, suggests a relatively complex understanding of the technology of discrimination. Perhaps the Court was not specifically considering the unconscious, or the modes by which people categorize, but it certainly understood that discrimination was powerful and could operate in subtle, complex, and even structural ways. The McDonnell Douglas-Furnco-Burdine trilogy, along with Griggs, which made even unintentional discrimination potentially actionable, put in place a powerful model for uprooting a history of societal and workplace discrimination.

Still, it would be a mistake to think that simply reworking the post-Hicks scheme or returning to Burdine would lead to a world in which employers would be accountable for unconscious bias. The framework successfully encompassed unconscious discrimination in part because the Court read Title VII as a significant limitation on employment at will. Hence, we differ with Krieger in that we do not see the Court's decision in Hicks as the inevitable demise of the early burden-shifting scheme that was too flawed to handle complex forms of discrimination. We also disagree with McGinley that Hicks is simply a backlash developed against an acknowledgment that antidiscrimination law rooted out unconscious bias. n158 Rather, we believe Hicks and its progeny must also be read in light of the history and influence of the employment at will doctrine.

IV. Employment At Will Critique

Although Part III argued that the legislature, commentators, and courts all had a more subtle and complex view of discrimination than they are generally given credit for, and that Title VII therefore accommodated the adjudication of claims of unconscious bias, we believe another dynamic was also at work. Specifically, the McDonnell Douglas-Burdine burden-shifting formula balanced employer and employee interests in a way that expressed skepticism of employment at will's place in antidiscrimination law. We therefore consider it as much a move to reign in employment at will as one to attend to subtle or even unconscious discrimination. In this sense, we attribute Hicks largely to a return to, or reassertion of, employment at will; [*1210] both in that it shifted the balance between employers and employees and it came close to permitting employers to refuse to give a reason for their actions. Both Hicks and the rise of the personal animosity presumption can only be fully understood by situating them in the debate about the extent to which Title VII should encroach upon employer prerogatives traditionally represented by the background rule of employment at will. This debate was prominent in the legislative history of the original enactment of Title VII, but it was not resolved there. Courts were left to rewrite the balance constantly. The burden-of-proof doctrine provided a site for continued recalibration of the balance, as represented by the shifts in the doctrine.

This Part outlines the extent to which issues about employment at will and questions about how much Title VII was meant to encroach upon employment at will have animated Title VII from its inception. We look to legislative history to describe the discussion about balancing employer and employee interests and to commentary contemporary to the legislation to examine what proponents and opponents of the bill imagined its scope to be. To the extent that some legislators and commentators believed that the Act would require employers to make decisions based solely on the qualifications of individual employees, we argue that they imagined for-cause legislation. But the debate represented many different positions, with - ironically but typically - the supporters of the bill sometimes insisting on its limited scope.

We then turn to case law, both early and contemporary. Even with Hicks, employers retain a burden of production to articulate legitimate nondiscriminatory reasons for their actions once a plaintiff has made out a prima facie case of discrimination. What has changed, however, is that plaintiffs can no longer succeed as a matter of law by showing that the reason the employer has offered is not the true reason. By giving employers more latitude in offering reasons for their decisions, the Court has moved closer to enforcing an at-will than a for-cause regime. Hicks, in particular, reemphasizes the extent to which employment at will is the background rule against which Title VII operates. It begins the replacement of the Furnco presumption with the personal animosity presumption.

A. Legislative History

Under Title VII, employment will be on the basis of merit, not race... . The title is designed to utilize to the fullest our potential workforce, to permit every worker to hold the best job for which he [or she] is qualified.

- Rep. Minish, 1964 n159 [*1211]

[Title VII] is bad legislation [and] should be stricken. It would remake the pattern of business operation in this country. We, as legislators, as representatives of a sovereign people, should not overthrow the usual and sound principles which have made our country great and strong. This title and this bill should be defeated. It is an extreme concentration - a usurpation of powers by the all-powerful Central Government.

- Rep. Gathings, 1964 n160

These quotations from Title VII's legislative history represent competing views of what a post-Title VII world would be like for employees and employers. Representative Minish emphasized that Title VII would move toward a system of merit-based employment in which the federal government would ensure that the most qualified person would get the job - regardless of that person's race, sex, or religion. Representative Gathings, however, argued that Title VII was faulty legislation because it would strip employers of their traditionally undisturbed power to do business as they pleased, which included the power to make employment decisions for good reason, bad reason, or no reason.

This tension between employer prerogatives and employee interests manifested itself in the House Report on Title VII. With no apparent sense of contradiction, the report outlined two opposing views of Title VII's impact. On one hand, employer prerogatives were to be left undisturbed, while on the other hand, jobs were to be filled on the basis of merit:

Management prerogatives [under Title VII] ... are to be left undisturbed to the greatest extent possible. Internal affairs of employers ... must not be interfered with except to the limited extent that correction is required in discrimination practices. [The EEOC's] primary task is to make certain that the channels of employment are open to persons regardless of their race and that jobs in companies ... are strictly filled on the basis of qualification. n161

This tension animates the entire legislative history of the Act. It also animates Title VII case law, as judges have continued the precarious balancing of employer and employee interests that surrounded the passage of the Act. n162 The legislative history demonstrates that deference to employer prerogatives is not simply a renegade move by judges. Nor is it necessarily [*1212] illegitimate. Title VII itself is carved out of a balance that takes employer interests into account. The balance has shifted back and forth over the years, but it is necessarily an ongoing process. We revisit the legislative history here to encourage a substantive discussion of how, rather than simply whether, the competing interests of employers and employees should be weighed.

The debate about the extent to which Title VII should affect employer prerogatives traditionally defended by the rule of employment at will was at the heart of discussions of Title VII at the time of its passage. Indeed, the principle of employment at will was itself elevated to the status of a civil right by opponents of House Bill 7152, the House predecessor to the Civil Rights Act of 1964, which included an early version of Title VII. n163 Opponents argued:

If [Title VII] is enacted, the President of the United States ... would be granted the power to seriously impair the following civil rights of those who fall within the scope of the various titles of this bill: ... the right of employers "to hire or discharge any individual" and to determine "his compensation, terms, conditions, or privileges of employment." n164

As supporters of Title VII advocated access to employment as a basic civil right and downplayed the perceived impact on employers, n165 opponents countered with their own civil right. Opponents argued that the effects of Title VII would be far reaching, encroaching on employer prerogatives and employment at will. n166

Indeed, much of the opposition to Title VII was simply stated. Such a statute was perceived as "a contradiction of the whole American free enterprise system." n167 One Senator noted that "Title VII proposes entry into an area which the Federal Government has absolutely no right to enter; namely, private employment. " n168 Thus, opponents of Title VII did not defend discriminatory practices per se. Indeed, many opponents of Title VII were less troubled by, and even supported, other provisions of the Civil Rights Act of [*1213] 1964, such as Title II on public accommodation. n169 Rather, the fundamental reworking of acceptable employment criteria was, to Title VII's opponents, perceived as going far beyond the issue of civil rights and into the realm of state coercion. n170

The often fiery rhetoric employed by opponents of Title VII makes clear that the loss of employer autonomy was viewed as the most problematic aspect of the fair-employment provision. In comments made on the floor of the House of Representatives, Representative Abernethy offered the following vision of Title VII's impact on employer choice:

With the passage of Title VII ... the Federal Government would assume authority over the American people in a manner unmatched in modern history outside acknowledged dictatorships. The Government of the United States would use the techniques of the lion tamers, cracking the whip and withholding rations, whenever the American businessman ... showed any signs of exercising his free will to hire employees. n171

Of particular importance to the opponents of Title VII was the idea that the statute would require employers, heretofore exempt from justifying their employment decisions, to give a reason for their conduct each time a claim of discrimination was made. Senator Cotton predicted that such a system could only lead to disaster:

When we go into the situation of ultimately going down to the little business which employs 25 or more employees and give the FEPC the power to step in and force an employer to employ someone he does [*1214] not wish to employ, or justify himself by expensive litigation in Federal court, there is no more real freedom left in this Nation. n172

Senator Sparkman offered his bleak assessment of the impact of Title VII this way: "Title VII ... would put the Federal Government and all disgruntled civil rights advocates in the position of dictating the terms of private employment throughout the whole nation." n173

To the extent some supporters of Title VII believed that the Act would substantially alter the traditional rule of employment at will, the fears of the opponents of the bill were not entirely unjustified. At least some supporters of Title VII specifically endorsed the Act because they envisioned a post-Title VII world in which the rule of employment at will would change to an employment system based on qualification and merit. n174 A House report discussing the requirements of Title VII observed that the proper role of the EEOC under the statute would be to "make certain that the channels of employment are open to persons regardless of their race and that jobs in companies or membership in unions are strictly filled on the basis of qualification." n175 Requiring employers to fill jobs strictly on the basis of qualification would, of course, effectively signal the end of employment at will because employers would be deprived of the ability to make employment decisions on whatever basis they choose - the very hallmark of employment at will. It would also require them to justify their reasons based on qualification, thereby precluding no cause decisions. In the form endorsed by the House, Title VII would have made an express move toward a system of for-cause employment by exempting employers from the remedial aspects of the law "if such individual was refused admission, suspended, or expelled or was refused employment or advancement or was suspended or discharged for cause." n176 This proposal, which would have placed explicit limitations on employer prerogatives if passed, was eliminated from the final Act. n177 The Supreme Court has used the rejection of the proposal to read the Act as the "converse ... of "for-cause legislation.'" n178

[*1215] Supporters of Title VII in the Senate, where seventy-five days of filibuster on the Senate floor had brought the progress of the Civil Rights Act to a screeching halt, n179 took a more moderate approach than some in the House to ensure that some antidiscrimination measure would be passed. As such, they attempted to assure employers that their traditional prerogatives would remain largely untouched. Statements made by supporters of the bill, such as Senator Clark, typically tried to ease employer concerns by focusing on what the bill did not do:

This title would not deprive anyone of any rights. All it does is to say that no American, individual, labor union, or corporation has the right to deny any other American the very basic civil right of equal job opportunity. The bill does not make anyone higher than anyone else. It establishes no quotas. It leaves an employer free to select whomever he wishes to employ... . All this is subject to one qualification, and that qualification is to state: "In your activity as an employer ... you must not discriminate because of the color of a man's skin. You may not discriminate on the basis of race, color, religion, national origin, or sex." That is all this provision does. n180

In this view, Title VII did not radically alter employment at will. n181 Rather, it simply created a narrow exception to it. Supporters of the bill tried to characterize this narrow exception as imposing no greater obligation on employers than those regulations imposed upon businesses by Congress in the years preceding Title VII, including the National Labor Relations Act, the Fair Labor Standards Act, and the Food and Drug Act. n182

[*1216] In the end, Title VII passed with a compromise. The statute was drafted somewhat broadly, but enforcement was limited; in 1964, the EEOC was given very little power. n183 The extent to which Title VII would alter the background rule of employment at will remained undetermined. As discussed at the beginning of this Part, the House Report both bespeaks and suppresses a contradiction: employer prerogatives were to be undisturbed, and employment decisions were to be based on merit. n184 Ultimately, the courts were left to mediate the contradiction. The burden-of-proof cases have served as an important site for the struggle.

B. Case Law

Those who apply an employment at will critique of Title VII have argued that courts are illegitimately guided by employment at will. In doing so, these critics have tended to focus on the balancing of employer and employee interests, not on the extent to which Title VII has altered the employment at will rule. That is, they often argue that courts improperly defer to employer prerogatives, pointing to language in Title VII cases, for example, indicating that courts should not second-guess business judgments. Corbett and Blumoff and Lewis have analyzed such language in Furnco and Hicks, as well as in a series of other cases. We read the burden-of-proof cases through a slightly different lens, with an eye toward their initial incursion into employment at will and their later attempts to revive it. Again, this perspective causes us to give Furnco a more positive read than it is given by employment at will critics.

In setting forth our argument, we do not mean to suggest that any of the burden-of-proof cases meant to require for-cause employment. Far from it, justices on the Court are in general agreement that Title VII only creates exceptions to employment at will, and they acknowledge that Congress was careful to balance employer and employee interests in enacting Title VII. Indeed, liberal justices have included references to the assurances by supporters of the Act from legislative history to that effect. n185 Even if Title VII did not constitute for-cause legislation, the judicially designed formula for burden shifting had the effect of eviscerating one portion of employment at will that many find to be at its heart - the ability of employers to make decisions for no reason.

[*1217] 1. Early Case Law: McDonnell Douglas, Furnco, and Burdine. -

Once it is said, for example, that workers cannot be dismissed for certain illicit motives, then the choices are dismissal for no reason, for good reason, or for bad reasons not covered by the statute, such as eye color. Courts will rightly be skeptical of any defense of a Title VII claim that says dismissal occurred for no reason at all. In some cases it might be possible to show that there was a bad but irrelevant reason. But in the typical case the best line of defense is to show that a refusal to hire or a decision to fire was made for a good cause, that is, for legitimate business reasons unrelated to race or sex.

- Richard Epstein, 1992 n186 Until Hicks and the appellate cases leading up to it, we believe that the above statement by Richard Epstein fairly described Title VII. Furnco had made it clear that courts would assume that, without a legitimate nondiscriminatory explanation by an employer, "it is more likely than not that those actions were bottomed on impermissible considerations." n187 Indeed, in the early cases, the courts looked to the reasons employers gave for their decisions and actually evaluated whether they would be sufficient grounds for failing to hire or promote, or for terminating an employee. In McDonnell Douglas, for example, the Court made much of the fact that it would be legitimate for an employer to terminate someone for illegal activity: "Nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it." n188 Although this sounds in many ways like an assertion of employment at will, the point is that the Court entered into the inquiry of whether the basis would be legitimate, absent discrimination. It did so even though there was nothing but circumstantial evidence of discrimination. The Court then ruled that, even though the reason would be legitimate, the plaintiff should have an opportunity to show that it was a pretext, or that it was not what actually motivated the employer.

Furnco and Burdine followed up on this rationale. In Furnco, Justice Rehnquist justified the requirement that employers offer a legitimate reason for their actions without apology: "We know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting." n189 Once employers are assumed to act with such reason, there is little encroachment upon their [*1218] prerogatives in asking them to articulate the reason. n190 Requiring employers to offer a reason for their actions follows from the inference of discrimination drawn from the prima facie case. That inference is justified, according to Justice Rehnquist in Furnco, "because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations." n191 As Epstein notes, the requirement that employers articulate a legitimate nondiscriminatory reason to counter the prima facie case means that employers are not free from challenge when they make decisions for no reason, an essential component of employment at will. n192

Burdine explicitly followed Furnco. There the Court reaffirmed the legal significance of the prima facie case, even while acknowledging that "the burden of establishing a prima facie case of disparate treatment is not onerous." n193 Nevertheless, the prima facie case creates a legal presumption so strong that "if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff." n194 This presumption flows from the assumption outlined in Furnco that "these [challenged] acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." n195

Deborah Malamud might consider the above reading of McDonnell Douglas, Furnco, and Burdine to be an example of what she calls "the nostalgic critique." n196 That is, she resists a critique of contemporary cases that "proclaims with moral confidence that the landmark Title VII cases of the early 1970s represented a clear, pro-plaintiff consensus, and that only a Court that no longer believes that race discrimination against nonwhites is - or ever was - a problem in our society would destroy it." n197 Malamud then persuasively reads the cases as conservative attempts at maintaining the line between disparate impact and disparate treatment causes of action, preventing the former from swallowing the latter. n198 She concludes that "whatever the Supreme Court was saying in the McDonnell Douglas-Burdine line of cases, what the Court was doing reveals that McDonnell Douglas-Burdine [*1219] rests on an essentially conservative foundation." n199 In showing how, in the cases at issue, the Court was reversing Court of Appeals decisions that had relied at least partly on disparate impact analysis, Malamud points to the same language in Furnco that Blumoff and Lewis and Corbett criticize. n200 She also discusses similar language in Burdine. Together, she argues, the cases demonstrate the Court's unwillingness to use the judicial system to ""diminish traditional management prerogatives' or to "require the employer to restructure his employment practices to maximize the number of minorities and women hired.'" n201

We agree with Malamud that what the Court did is significant. She adds an important dimension to the historical analysis by looking at the relationship between the disparate treatment and disparate impact cases. With that focus, however, she underplays the extent to which the disparate treatment cases nevertheless significantly undercut the traditional rule of employment at will. The Court of the 1970s and early 1980s was willing to require employers to justify their personnel actions and, in the absence of such a justification, to presume that unlawful discrimination motivated the employer. n202 Particularly in this post-Hicks world, those assumptions and conclusions seem radical. The Court had created a burden-of-proof allocation in which employers would be liable if they could not, through admissible and irrefutable evidence, articulate and support a legitimate nondiscriminatory reason for adverse employment decisions. In other words, the Court did more than require that defendants put forth a reason. If plaintiffs could refute the reason, they had proved pretext and were entitled to judgment as a matter of law.

2. Hicks and Reeves. - Hicks, the lower court opinions that were affirmed in Hicks, and many subsequent cases have attempted to remove, or [*1220] at least soften, this burden on employers. After Hicks, courts are no longer willing to assume that, absent an explanation, discrimination motivated the defendant employer. In McDonnell Douglas, Furnco, and Burdine, the Court was willing to risk that employers would be found liable for discrimination even when the employers really believed there was no discrimination, and when there was only circumstantial evidence to support the claim. It treated the statute as a deterrent mechanism - as a tool to make employers more deliberate and less discriminatory. In contrast, the majority in Hicks was willing to risk that employees who suffered discrimination would find no relief. Blumoff and Lewis's critique of the Court's treatment of disparate impact is apt here: "The Court prefers to preserve the defendant's freedom of contract rather than commit the "false positive' error that favors the victim." n203 Hence, the Court paved the way for a replacement of the Furnco presumption, which would risk false positives, with the personal animosity presumption which, by assuming that personal animosity was more likely than illegal discrimination to account for an employer's challenged decision, would risk, or even guarantee, a high percentage of false negatives. Although there is no reason to think that the Court was not aware of the risk it was accepting, Michael Selmi has noted that it "failed to acknowledge that, as a result of its decision, some deserving plaintiffs will lose out." n204

As discussed earlier, the Supreme Court in Burdine, as well as in the subsequent case of United States Postal Service Board of Governors v. Aikens, n205 permitted an employee to meet the ultimate burden of proving discrimination in one of two ways: "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." n206 When the Hicks Court read that language as dicta and held that, to meet their burden of showing pretext, plaintiffs must "show[] both that the reason was false, and that discrimination was the real reason," n207 it reasserted an employer's prerogative under classical employment at will doctrine [*1221] to make employment decisions for no reason. Although the Court did not shift the burden-of-proof allocation so dramatically as to remove totally the defendant's burden of articulating a legitimate nondiscriminatory basis for its decision, it significantly changed the nature of that burden.

The Hicks majority justified its decision with rhetoric that suggested antagonism toward even the defendant's burden to articulate a justification. In his majority opinion, Justice Scalia offered a hypothetical to demonstrate why permitting a plaintiff to prevail as a matter of law upon showing that the employer's reason is false would be untenable. His hypothetical imagined a workplace in which a particular minority is overrepresented, n208 and a minimally qualified applicant from that minority group applies for a job but is denied it by a decisionmaker of the same group. n209 The job remains open, and the decisionmaker is eventually fired. When the rejected applicant files an action under Title VII, the employer is in a difficult position under the dominant understanding of McDonnell Douglas and Burdine:

Not only must the company come forward with some explanation for the refusal to hire (which it will have to try to confirm out of the mouth of its now antagonistic former employee), but the jury must be instructed that, if they find the explanation to be incorrect, they must assess damages against the company, whether or not they believe the company was guilty of racial discrimination. n210

In a footnote decrying the dissent's unwillingness to attend seriously to this "not at all unrealistic" hypothetical, the majority suggested that employers should not even be required to articulate reasons for their actions, or at least not for decisions not to hire: "The notion that every reasonable employer keeps "personnel records' on people who never became personnel, showing why they did not become personnel (i.e. in what respects all other people who were hired were better) seems to us highly fanciful - or for the sake of American business we hope it is." n211

For the majority of the Court, then, the difficulty with the McDonnell Douglas-Burdine formulation would seem to lie with the defendant's initial burden to offer a reason for its actions. The Court continued this line of reasoning when responding to the dissent's concern that employers who lie about their motives should not prevail in Title VII actions. Justice Scalia wrote that "there is no justification for assuming ... that those employers [*1222] whose evidence is disbelieved are perjurers and liars." n212 Rather, the difficulty for employers would seem to be in determining the reason for the employment decision: "The defendant is ordinarily not an individual but a company, which must rely upon the statement of an employee - often a relatively low-level employee - as to the central fact; and that central fact is not a physical occurrence, but rather that employee's state of mind." n213 Finally, later in the opinion, the Court insisted that "Title VII does not award damages against employers who cannot prove a nondiscriminatory reason for adverse employment action." n214

If employers cannot discover the true reason for their decisions, what should they do? The dissent suggested that the majority gave employers no choice but to lie: "The majority's scheme therefore leads to the perverse result that employers who fail to discover nondiscriminatory reasons for their own decisions to hire and fire employees not only will benefit from lying, but must lie, to defend successfully against a disparate treatment action." n215 But if the burden-shifting mechanism encourages employers to lie, it is the McDonnell Douglas scheme, not the Hicks scheme, that offers employers that incentive. Hicks, by refusing to find employers liable for discrimination as a matter of law once a plaintiff demonstrates pretext, decreases the risk to employers of lying. McDonnell Douglas, however, is responsible for requiring employers to articulate a reason in the first place. n216 We assert that the majority in Hicks would prefer not to put employers in a position of justifying their decisions - and therefore possibly having to lie - at all. Despite its protestations to the contrary, n217 the logic of the majority suggests that the burden should never shift to the employer to justify its actions with any reason, true or otherwise. n218

The majority and dissent disagreed in their assumptions about what motivates employers and the likelihood that discrimination is responsible for their challenged actions. In Hicks, it was the dissent - not the majority - that quoted the Furnco presumption language. n219 We contend that the majority in [*1223] Hicks no longer makes this presumption. The turn away from the presumption decreases the burden on employers by increasing the burden on plaintiffs.

As discussed in Part II, although Reeves pulled the reins in on lower courts that had required pretext-plus to succeed as a matter of law, n220 it fundamentally followed Hicks. The tone of the Court, however, varies markedly in the two opinions. The majority in Reeves seemed less troubled than the Hicks majority by the McDonnell Douglas-Burdine requirement that employers articulate a nondiscriminatory reason for their actions. Indeed, the Court at least partly returns to the Furnco presumption:

Once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Cf. Furnco ("When all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts with some reason, based his decision on an impermissible consideration."). n221

Reconciling this presumption with Hicks, the Court then reiterated that a factfinder may find for the plaintiff based solely on the prima facie case and sufficient evidence of the falsity of the proffered reason. Acknowledging that there are some instances in which such a finding would be improper, the exceptions it lists are more narrow and more specific than the hypothetical put forth by Justice Scalia in Hicks. The Court noted that "an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." n222 Read in conjunction with the Furnco presumption, it could be argued that the Court in Reeves permits, if not requires, factfinders to give significant weight to a plaintiff's rebuttal of an employer's articulated reason. Unlike in Hicks, the suggestion is that employers should be able to justify their decisions.

Of course, having commanded a nearly unanimous opinion, Reeves is necessarily softer than Hicks. It could be read as merely reiterating Hicks, but we believe that it reveals that at least a number of the justices, including Justice O 'Connor, who authored the opinion, are not as eager to resurrect no [*1224] cause employment as Hicks suggests. Whether and how this will play out in future Supreme Court cases remains to be seen. Meanwhile, this possible return to the Furnco presumption seems to have been missed or ignored by many lower courts. n223

V. The Personal Animosity Cases

The preceding Parts identify two principal approaches to understanding burden-of-proof cases in Title VII litigation. While both the unconscious bias and employment at will critiques are useful for detecting and analyzing the subtle shift in presumption from Furnco to Hicks and its progeny, neither is sufficient on its own. Rather, the inability of contemporary burden-of-proof mechanisms to detect unconscious bias in employer decisionmaking and judicial deference to employer prerogatives are mutually reinforcing factors in explaining this important development in Title VII jurisprudence. The interpenetration of these influences is most apparent in an examination of cases similar to Hicks (both before and after Reeves) in which employers assert or courts presume that personal animosity - not discrimination - motivated an employer.

Courts frequently invoke the maxim that "Title VII prohibits discrimination; it "is not a shield against harsh treatment at the work place.' Personal animosity is not the equivalent of ... discrimination and is not proscribed by Title VII." n224 Despite the apparent clarity of this statement, what distinguishes personal animosity from discrimination remains [*1225] unclear. n225 The distinction, however, is critical for litigants. A finding or assumption that an adverse employment action is grounded in personal animosity, as opposed to discriminatory animus, results in denial of relief under Title VII.

The cases that we term "personal animosity cases" and discuss in this Part are not necessarily drawn from a discrete subsection of Title VII cases with similar fact patterns and stable precedents guiding courts to attribute employer decisions to personal rather than discriminatory motives. In other words, cases that invoke or accept personal animosity as an excuse for employer conduct cannot necessarily trace a common ancestry. Personal animosity was invoked in cases prior to the recognition of the defense in Hicks and the subsequent rise of the pretext-plus requirement. n226 The bulk of the cases invoking personal animosity appear after Hicks and continue even after Reeves. In these cases, courts often presume personal animosity even in the absence of any evidence to that effect. In surprisingly few instances do employers themselves directly assert that they were motivated by personal animosity. n227

Far from raising the specter of illegal discrimination, personal animosity in these cases operates as the quintessential, legitimate, nondiscriminatory reason. We have already discussed Hicks as the paradigmatic personal animosity case, and we have used it to demonstrate how the personal animosity presumption has, for some Supreme Court justices and lower courts at least, replaced the Furnco presumption. This Part first discusses how the personal animosity presumption functions and how it has subtly but persistently begun to replace the Furnco presumption. Indeed, that we have a set of cases that we can call personal animosity cases attests to the success of the presumption. We then use both unconscious bias and employment at will critiques to attempt to understand and respond to the ways in which courts have confidently begun to draw a distinction between personal animosity and illegal bias. n228

[*1226]

A. The Rise of the Personal Animosity Presumption

Recall that Hicks was a case in which the trial court found that personal animosity was likely responsible for Hicks's treatment even though the employer never made the argument. When the Supreme Court remanded the case, the parties agreed to take new depositions of the decisionmakers to determine whether they had in fact been motivated by racial animus or by personal animosity. At deposition, both decisionmakers were asked specifically whether they harbored any personal animosity against Hicks. Both denied any such animosity and insisted that the decision was based on rule infractions. n229 Because the rule infraction reason had been successfully refuted in the original Hicks litigation, the defense counsel did not pursue it on appeal. Rather, the defense argued that personal animosity had in fact motivated the employer. Despite the deposition, the court held for St. Mary's Honor Center, finding that Hicks had still failed to prove that racial discrimination caused the adverse employment actions.

The presumption of personal animosity has become more prevalent since Hicks, but a 1986 Eleventh Circuit case, McCollum v. Bolger, n230 is often quoted for support in these cases. In Bolger, three postal employees, a mother and her two sons, brought Title VII as well as other claims against the postal service for a dismissal allegedly based on sex discrimination and retaliation. n231 There was significant evidence of long-standing personal discord between the postmaster and the family of the employees. As Judge Wisdom described the case, "the dispute here began and continued as a result of the personal animus the plaintiffs bore for a postmaster whom they blame for certain set-backs they suffered as postal employees." n232

There were numerous claims in Bolger. On several of the claims, the appellate court found, contrary to findings by the district court, that the plaintiffs had made out prima facie cases of discrimination. Nevertheless, the employer had articulated legitimate nondiscriminatory reasons for the [*1227] action. In the discussion that included the now commonly quoted language about personal animosity, the court found that the mother's ultimate suspension was due to the fact that she "had a bad relationship with her supervisor ... and she also disagreed with her superiors as to how her job should be performed." n233 The court did not consider whether this impression of the employee might be influenced by conscious or unconscious gender bias. It did, however, base its conclusion on "competent witnesses [who] testified that the plaintiff did not get along with her supervisor and was "a combative, hostile, rude, vindictive and dictatorial employee.'" n234 The court added that the plaintiff had failed to follow instructions. n235 Finally, the court stated, "Title VII prohibits discrimination; it "is not a shield against harsh treatment at the work place.' Personal animosity is not the equivalent of sex discrimination and is not proscribed by Title VII. The plaintiff cannot turn a personal feud into a sex discrimination case by accusation." n236 The court's finding of personal animosity in Bolger was based on the record in that case. The court did not assume that, in the absence of proof of discrimination, personal animosity would explain the treatment of the plaintiff. Indeed, the court began by focusing on the plaintiffs' dislike for the employer, not the other way around. n237

The record's support of the finding in Bolger stands in contrast to most of the cases that repeat its language. In the latter, personal animosity often serves as a default presumption. Employers rarely raise it, and records generally do not support it. At times, records even defy it, as in Hicks. Courts nevertheless increasingly presume that, in the absence of direct evidence of discrimination, personal animosity explains adverse employment actions. This presumption became particularly prevalent in the pretext-plus cases. Even though those cases have, at least in principle, been reversed by Reeves, the presumption seems to have survived.

In Mathis v. Perry, n238 a post-Hicks case upholding summary judgment for the defendant because the plaintiff did not prove pretext-plus, the court determined that the plaintiff's direct evidence merely constituted stray remarks. The court then went on to find that, although the plaintiff had refuted the employer's articulated nondiscriminatory reason for its actions, she nevertheless had not carried her burden "to show that the reason was a "pretext,' which means "pretext for discrimination.' This is so because [plaintiff] has provided no evidence to raise a triable issue respecting whether [*1228] discrimination, as opposed to personal animosity, provided the true reason for her low evaluations." n239 Other pretext-plus cases contain similar language. In Cooperman v. Solil Management, the plaintiff provided evidence indicating that all the reasons given by his employer for his termination were false. n240 The court nevertheless granted the defendant summary judgment, concluding that the "plaintiff has presented no evidence to suggest an age-related motive to the request [that plaintiff argued suggested discrimination]. At most, we could find his supervisor's directive to have been borne of personal animosity, which is not actionable under federal discrimination statutes." n241 As in Hicks, the defendants in neither of these cases argued that their decisions were based on personal animosity.

In some instances, the personal animosity presumption has become so strong that courts do not even enter into the analysis of pretext. Rather, they increase the burden for plaintiffs to make out a prima facie case and reject the circumstantial evidence that generally meets that presumption. In Cooper v. Binney & Smith, n242 the court granted the defendant's motion for summary judgment against a plaintiff's claim of racial discrimination and harassment. Although part of the decision was based on the vagueness of the plaintiff's claim, the court made clear its presumption of personal animosity: "In addition, plaintiff provided no evidence from which a reasonable inference can be drawn that the supervisor scrutinized him more closely because of his race rather than for other reasons, such as personal animosity arising from factors other than plaintiff's race." n243 Similarly, in Evans v. Toys R Us, Inc., n244 the Sixth Circuit affirmed summary judgment for the defendant on the ground that the plaintiff failed to make out a prima facie case. In addressing the plaintiff's claim that he was not promoted because he was black and disabled, the court responded that he "offered no evidence that [his supervisor's] evaluation was motivated by racial animus rather than by his job performance or by some other personal dislike." n245 Again, in neither case did the defendant raise the personal animosity defense. In fact, because the cases were decided on summary judgment on the lack of a prima facie case, the employers were never required to articulate reasons for their actions. n246

[*1229]

B. An Unconscious Bias Critique of the Personal Animosity Cases

Whether courts presume personal animosity or find it "lurking in the record," n247 the conclusion that personal rather than discriminatory animus explains a decision relies on a sharp distinction between the two motives. The key insight that the unconscious bias approach brings to these cases is that the attribution of personal motives to employer conduct denies the very real possibility that personal animosity may in fact reflect unconscious discriminatory bias. Mark Brodin has argued that in Hicks, for example, "the Court's ready acceptance of a "personality clash' as a nondiscriminatory justification ignores the effects of unconscious bias and stereotyping and opens a gaping loophole in the law." n248 He further suggests that "the recognition of so generous a "personality' defense reflects a failure and refusal to appreciate the subtleties of the discrimination phenomenon." n249 We agree with Brodin's observation that personality conflicts often stem from or are indicative of subconscious bias. We also agree with his conclusion that "precisely because racist and sexist thoughts are so deeply imbedded in our cultural belief system, the idea that one can distinguish among such motives, especially where one of them is subscribed to unconsciously, reflects a false dichotomy." n250

This Part further describes personal animosity cases by exploring the technology of judicial decisions from an unconscious bias perspective. Such a perspective leads us to identify and critique three ways that courts discount evidence of discrimination when they conclude that personal animosity has motivated an employer. We demonstrate each of these methods with at least one case, each of which includes what some would consider direct, or smoking gun, evidence. Thus, although we use the cases to explore the working of unconscious bias, we do so with an acute awareness that much bias remains overt.

1. Invoking Title VII's "Because of" Clause. - Title VII prohibits discrimination "because of [an] individual's race, color, religion, sex, or national origin." n251 Hence, when judges invoke the personal animosity presumption, they often state that the plaintiff has failed to prove that the adverse employment action was taken "because of" the plaintiff's protected [*1230] status rather than for personality reasons. A key insight of the unconscious bias perspective, however, is that race and sex may have played a role in employment decisions, even when the decisions were not explicitly made "because of someone's race or sex." n252 Linda Krieger notes, "An employee's group status may have affected the decisionmaker in completely nonconscious ways by affecting what he saw, how he interpreted it, the causes to which he attributed it, what he remembered, and what he forgot." n253 The personal animosity cases often demonstrate the possible effect of such unconscious bias.

In Carter v. Cornell University, n254 for example, a black female secretary alleged race and gender discrimination under Title VII for her employer's failure to promote her. n255 The plaintiff's manager, a white male, had given the plaintiff poor evaluations and had made several racially charged comments in her presence. These statements included referring to then-Mayor Dinkins as "your boy," stating that Rodney King "would not have been beaten had he not run from the police," stating that Rev. Martin Luther King did not deserve a national holiday, and suggesting that plaintiff had celebrated the day the O.J. Simpson criminal trial verdict was announced. n256 The manager had also told the plaintiff's co-worker that he had refused to board an elevator with three "rough looking" black men on it, and that he "could not hire a black nanny for his daughter because he was afraid of the neighborhood reacting negatively to an African-American." n257

During a bench trial, the defendant offered nondiscriminatory reasons for the poor evaluations, but the plaintiff proved that the reasons were "entirely pretextual." n258 Nevertheless, the court determined that the evidence suggested that the poor evaluations "may have been the result of a personal animosity that had arisen between [the supervisor] and plaintiff that had nothing to do with race or gender." n259 Citing the manager's jealousy of the plaintiff's skills and his desire to "break her power," n260 the court placed the blame for the promotion decision on the "growing personal animosity between plaintiff and defendant." n261 Additionally, the court explicitly refused to explore the potential relationship between personal and racial or sexual animosity: "Rather than attempt to discern the source of this animosity ... [*1231] the court does no more than conclude that there is not enough evidence to support the notion that it is related to plaintiff's race or gender." n262

The Carter court's explanation that race and gender were unrelated to the adverse employment action is highly susceptible to an unconscious bias critique. The court seemed satisfied that as long as some nondiscriminatory reason could be identified, such as the supervisor's jealousy n263 or desire to break the plaintiff's power, the failure to promote was not because of the plaintiff's protected status. The court's explicit refusal to discern the source of the animosity at issue ignores the possibility of unconscious racial bias. At the most obvious level, the court overlooked the fact that the racial comments made by the plaintiff's supervisor demonstrated that the supervisor held stereotypical beliefs about the plaintiff's race that likely buttressed the supervisor's decision not to promote the plaintiff. Furthermore, the court ignored the fact that the supervisor's desire to break the plaintiff's power could be intimately tied to the operation of both conscious and unconscious stereotypes. As Mark Brodin has suggested, such nondiscriminatory explanations often emerge "as a matter of guilt-avoidance," a way for the actor to "deny his or her own discriminatory beliefs and ideas." n264 In other words, in making the issue personal, the court potentially overlooked that the supervisor may have dissembled the extent of his discriminatory beliefs. Similarly, the court ignored the possibility that the plaintiff's poor evaluations, which were proven to be based on pretextual reasons, might further reflect the presence of discriminatory animus in the workplace. In short, the court's insistence that it was not because of the plaintiff's protected status that she was not promoted reflects an incomplete appreciation of the nature of discriminatory bias.

2. Interpreting Causation by Focusing on the Moment of the Adverse Decision. - When invoking personal animosity, courts sometimes discount evidence of decisionmakers' discriminatory attitudes by finding that plaintiffs have failed to come forward with evidence that those attitudes played a role at the moment the adverse decision was made. Krieger, however, observes that discriminatory bias cannot be explained away by a mere temporal gap between the time derogatory comments are made and when the adverse employment action is finally taken because "categorization based on race, sex, or national origin may distort perception, memory, and recall for decision-relevant events such that, at the moment of decision, an employer may be entirely unaware of the effect of an employee's group membership [*1232] on the decision making process." n265 Personal animosity cases are ripe for this critique.

In Gartman v. Gencorp, n266 for example, a quality manager at an auto parts company claimed that she was constructively discharged because of her sex. To support her claim, the plaintiff introduced evidence that a male division vice-president, Hunnicut, had said "shit, another gal" when he learned that the plaintiff had been hired. n267 Additionally, the division president, Smith, had made what the plaintiff considered to be belittling gender-based comments: He told her she did not know "how to belly up to the bar," he referred to her as "kid," and he "advised her not to show her ignorance by referring to an engine when she meant a block." n268 In granting summary judgment for the defendant, the court noted that "Smith's rude comments were devoid of gender-conscious terms" and that the more likely explanation was a "personal dislike" of the plaintiff "born out of jealousy." n269 With regard to Hunnicut's "shit, another gal" remark, the court determined that, although the term was "gender-conscious, ... "not all comments that reflect a discriminatory attitude will support an inference that an illegitimate criterion was a motivating factor in an employment decision.'" n270

A critical justification for the Gartman court's decision was the lack of a timely connection between the "shit, another gal" remark and the employee's discharge. n271 Unless the offending comment and the plaintiff's discharge were practically simultaneous, the mere fact of the offensive comment was deemed irrelevant to the court's determination of whether illegal discrimination motivated the employer. From an unconscious bias perspective, this temporal disconnection is highly suspect. As Krieger has noted, "the notion that decision making is somehow separate from the perceptive, [*1233] interpretive, and memorial processes that precede it is utterly fallacious. These various processes comprise a functional continuum which is vulnerable to distortion at every point. Thus, discrimination is not necessarily something that occurs "at the moment of decision.'" n272 Viewing Gartman in this light, the division vice-president's "shit, another gal" comment is highly probative of a discriminatory attitude because it displays a predisposition against women in the workplace. The company president's comments, although devoid of gender-conscious terms, betray a patronizing attitude that might be probative of whether and why the plaintiff was treated differently from her male co-workers. n273 By demonstrating the difficulty of abandoning stereotypical attitudes at the moment the adverse employment decision is made, the unconscious bias critique would undermine the Gartman court's presumption that personal rather than discriminatory motives caused the plaintiff's discharge.

3. Deploying the "Stray Remarks" Doctrine. - Finally, courts commonly regard plaintiffs' direct evidence of discrimination as mere "stray remarks." In doing so, they often quote Justice O'Connor's concurrence in Price Waterhouse v. Hopkins, which stated that "stray remarks in the workplace, while perhaps probative of [discrimination], cannot justify requiring the employer to prove that its hiring criteria or promotion decisions were based on legitimate criteria." n274 Although no court has settled on a fixed definition of what distinguishes stray remarks from actionable discrimination, courts frequently characterize explicit race-, age-, or sex-based comments as stray remarks in personal-animosity Title VII cases. n275 [*1234] Often courts engage in a "piecemeal analysis of the alleged incidents," n276 in which comments that do not on the surface reflect a discriminatory bias are isolated from more explicit comments. Comments of the former variety are typically characterized as reflecting personal animosity while the latter tend to be characterized as stray remarks. n277 From an unconscious bias perspective, the "federal court's delineation of precisely where the realm of "stray remarks' ends and the "decisionmaking process' begins has reached a level of absurdity." n278

Cooperman v. Solil Management n279 illustrates how the stray remarks doctrine is employed to minimize the value of direct evidence of discriminatory bias, even where the plaintiff has presented persuasive evidence that the employer's proffered reasons for discharge were pretextual. In Cooperman, a property and leasing manager alleged that he was terminated because of his age in violation of the ADEA. n280 He introduced evidence of three incidents that he argued suggested age discrimination. First, he was delegated duties that should not have been required of a property and leasing manager, including monitoring the payment of utility bills and reading on-site meters. n281 Second, during negotiations with union officials, a union representative told plaintiff that he "ought to retire." n282 The plaintiff's supervisor, who was present at the meeting, did not contradict the union representative, and the supervisor "dismissed [plaintiff] from the meeting altogether." n283 Finally, upon return from a vacation to Florida, another superior asked the plaintiff if he was looking for a retirement home. n284 As noted earlier, the court found for the defendant on summary judgment because, even though the plaintiff had proved that the employer's nondiscriminatory reasons were untrue, he had not proved that age rather [*1235] than personal animosity was the true reason for adverse employmen