Using the Same Actor "Inference" in Employment Discrimination Cases

The same actor inference provides a simple rationale for disposing of easy cases, and reduces in some small degree the legal burden that Title VII places on employers who hire minority employees. It does not, however, provide absolute proof that discrimination has not occurred. For this reason, in Burdine-type cases where the plaintiff's circumstantial evidence of discrimination is weak, courts should be free to apply the inference in summary judgment or directed verdict proceedings as part of the third step in the Burdine framework. The effect of the inference should be to hold the plaintiff to a slightly higher standard of proof than would be necessary absent the facts creating the inference.

However, the inference should be given no presumptive effect in direct evidence cases or where the plaintiff's circumstantial evidence of discrimination is particularly strong.