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

One of the most egregious examples of the tension between federal employment discrimination law and psychological science is the federal common law doctrine known as the same-actor inference. When originally elaborated by the Fourth Circuit in Proud v. Stone, the same-actor doctrine applied only when an “employee was hired and fired by the same person within a relatively short time span.” In the two decades since, the doctrine has widened and broadened in scope. It now subsumes many employment contexts well beyond hiring and firing, to scenarios in which the “same person” entails different groups of decision makers, and the “short time span” has been elastically extended over seven years. Per the same-actor doctrine, when a supervisor first behaves in a way that benefits an employee and then subsequently takes adverse action against that employee, many federal courts conclude that the supervisor’s adverse treatment is presumptively nondiscriminatory, adopting the strong inference that the supervisor’s negative employment decision was not motivated by bias. This Article concludes that this doctrine should be curtailed. Given the dearth of textual support and legislative history supporting the creation of the same-actor doctrine, the striking growth rate of this unjust doctrine in circuits that apply the strong-inference standard, and the psychological science amassed that powerfully reveals the errors laden within the doctrine, federal courts should reevaluate their existing jurisprudence on the same-actor inference. Ultimately, this Article recommends that federal courts resolve the existing circuit split by adopting the approach of the U.S. Court of Appeals for the Seventh Circuit. Fundamentally, same-actor evidence should be one evidentiary datum for the ultimate trier of fact to weigh along with all other possible evidence of discrimination

Access to Counsel: Psychological Science Can Improve the Promise of Civil Rights Enforcement

Employment discrimination claimants in general, and racial minority claimants in particular, disproportionately lack access to legal counsel. When employment discrimination claimants lack counsel, they typically abandon their claims, or if they pursue their claims, they do so pro se (without counsel), a strategy that is seldom successful in court. Access to counsel is, hence, a decisive component in whether employment discrimination victims realize the potential of civil rights enforcement. Psychological science analyzes access to counsel by identifying psychological barriers—such as threatened social identity, mistrust in legal authorities, and fear of repercussions—that prevent employment discrimination victims from pursuing counsel. The analysis also identifies how cultural beliefs and practices concerning justice—such as meritocracy beliefs, perceived post-racialism, and organizational diversity initiatives—shape how judges, jurors, and lay people think about discrimination. Furthermore, counsels’ perceptions of other’s beliefs about discrimination shape their assessed likelihood of prevailing. These psychological barriers intersect with structural barriers to shape counsels’ evaluation of each case’s likely financial viability, which can prevent counsel from accepting cases that they otherwise deem meritorious. Policy can help those who experience employment discrimination obtain legal representation and meaningful redress for civil rights violations

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

One of the most egregious examples of the tension between federal employment discrimination law and psychological science is the federal common law doctrine known as the same-actor inference. When originally elaborated by the Fourth Circuit in Proud v. Stone, the same-actor doctrine applied only when an “employee was hired and fired by the same person within a relatively short time span.” In the two decades since, the doctrine has widened and broadened in scope. It now subsumes many employment contexts well beyond hiring and firing, to scenarios in which the “same person” entails different groups of decision makers, and the “short time span” has been elastically extended over seven years. Per the same-actor doctrine, when a supervisor first behaves in a way that benefits an employee and then subsequently takes adverse action against that employee, many federal courts conclude that the supervisor’s adverse treatment is presumptively nondiscriminatory, adopting the strong inference that the supervisor’s negative employment decision was not motivated by bias. This Article concludes that this doctrine should be curtailed. Given the dearth of textual support and legislative history supporting the creation of the same-actor doctrine, the striking growth rate of this unjust doctrine in circuits that apply the strong-inference standard, and the psychological science amassed that powerfully reveals the errors laden within the doctrine, federal courts should reevaluate their existing jurisprudence on the same-actor inference. Ultimately, this Article recommends that federal courts resolve the existing circuit split by adopting the approach of the U.S. Court of Appeals for the Seventh Circuit. Fundamentally, same-actor evidence should be one evidentiary datum for the ultimate trier of fact to weigh along with all other possible evidence of discrimination

Insidious procedures: diversity awards legitimize unfair organizational practices

This is the author's version of an article subsequently published in Social Justice Research in final format. The final publication is available at Springer via http://dx.doi.org/10.1007/s11211-015-0240-zDoes the presence (versus absence) of an organizational diversity award increase the perceived fairness of biased personnel procedures? Participants examined fair or unfair personnel procedures at a company that had received a diversity award or an award unrelated to diversity. When the company had received a diversity award (versus a control award), participants perceived the unfair personnel procedure as fairer for minorities, and White participants were more supportive of enacting the biased procedure. These findings suggest that organizations perceived as successfully supporting diversity might be afforded particular legitimacy to enact policies and procedures that disadvantage the very groups they are perceived as valuing.National Science Foundatio

Humanized Mice Recapitulate Key Features of HIV-1 Infection: A Novel Concept Using Long-Acting Anti-Retroviral Drugs for Treating HIV-1

BACKGROUND: Humanized mice generate a lymphoid system of human origin subsequent to transplantation of human CD34+ cells and thus are highly susceptible to HIV infection. Here we examined the efficacy of antiretroviral treatment (ART) when added to food pellets, and of long-acting (LA) antiretroviral compounds, either as monotherapy or in combination. These studies shall be inspiring for establishing a gold standard of ART, which is easy to administer and well supported by the mice, and for subsequent studies such as latency. Furthermore, they should disclose whether viral breakthrough and emergence of resistance occurs similar as in HIV-infected patients when ART is insufficient. METHODS/PRINCIPAL FINDINGS: NOD/shi-scid/γ(c)null (NOG) mice were used in all experimentations. We first performed pharmacokinetic studies of the drugs used, either added to food pellets (AZT, TDF, 3TC, RTV) or in a LA formulation that permitted once weekly subcutaneous administration (TMC278: non-nucleoside reverse transcriptase inhibitor, TMC181: protease inhibitor). A combination of 3TC, TDF and TMC278-LA or 3TC, TDF, TMC278-LA and TMC181-LA suppressed the viral load to undetectable levels in 15/19 (79%) and 14/14 (100%) mice, respectively. In successfully treated mice, subsequent monotherapy with TMC278-LA resulted in viral breakthrough; in contrast, the two LA compounds together prevented viral breakthrough. Resistance mutations matched the mutations most commonly observed in HIV patients failing therapy. Importantly, viral rebound after interruption of ART, presence of HIV DNA in successfully treated mice and in vitro reactivation of early HIV transcripts point to an existing latent HIV reservoir. CONCLUSIONS/SIGNIFICANCE: This report is a unique description of multiple aspects of HIV infection in humanized mice that comprised efficacy testing of various treatment regimens, including LA compounds, resistance mutation analysis as well as viral rebound after treatment interruption. Humanized mice will be highly valuable for exploring the antiviral potency of new compounds or compounds targeting the latent HIV reservoir

Acupuncture and chiropractic care for chronic pain in an integrated health plan: a mixed methods study

<p>Abstract</p> <p>Background</p> <p>Substantial recent research examines the efficacy of many types of complementary and alternative (CAM) therapies. However, outcomes associated with the "real-world" use of CAM has been largely overlooked, despite calls for CAM therapies to be studied in the manner in which they are practiced. Americans seek CAM treatments far more often for chronic musculoskeletal pain (CMP) than for any other condition. Among CAM treatments for CMP, acupuncture and chiropractic (A/C) care are among those with the highest acceptance by physician groups and the best evidence to support their use. Further, recent alarming increases in delivery of opioid treatment and surgical interventions for chronic pain--despite their high costs, potential adverse effects, and modest efficacy--suggests the need to evaluate real world outcomes associated with promising non-pharmacological/non-surgical CAM treatments for CMP, which are often well accepted by patients and increasingly used in the community.</p> <p>Methods/Design</p> <p>This multi-phase, mixed methods study will: (1) conduct a retrospective study using information from electronic medical records (EMRs) of a large HMO to identify unique clusters of patients with CMP (e.g., those with differing demographics, histories of pain condition, use of allopathic and CAM health services, and comorbidity profiles) that may be associated with different propensities for A/C utilization and/or differential outcomes associated with such care; (2) use qualitative interviews to explore allopathic providers' recommendations for A/C and patients' decisions to pursue and retain CAM care; and (3) prospectively evaluate health services/costs and broader clinical and functional outcomes associated with the receipt of A/C relative to carefully matched comparison participants receiving traditional CMP services. Sensitivity analyses will compare methods relying solely on EMR-derived data versus analyses supplementing EMR data with conventionally collected patient and clinician data.</p> <p>Discussion</p> <p>Successful completion of these aggregate aims will provide an evaluation of outcomes associated with the real-world use of A/C services. The trio of retrospective, qualitative, and prospective study will also provide a clearer understanding of the decision-making processes behind the use of A/C for CMP and a transportable methodology that can be applied to other health care settings, CAM treatments, and clinical populations.</p> <p>Trial registration</p> <p>ClinicalTrials.gov: <a href="http://www.clinicaltrials.gov/ct2/show/NCT01345409">NCT01345409</a></p

Narcissistic Features in Young Adolescents: Relations to Aggression and Internalizing Symptoms

Recent research and theory suggest narcissistic features contribute to aggression in adults. The present study examined the association of narcissistic features with aggression and internalizing symptoms in 233 students of 5th–8th grade at three inner-city schools. A factor analysis of the Narcissistic Personality Inventory in this sample revealed three factors: Adaptive Narcissism, Exploitativeness, and Exhibitionism. Regression analyses were used to predict the association of these three narcissistic features with self-, teacher-, and peer-reported aggression and self-reported internalizing symptoms. Results indicate narcissistic exploitativeness positively predicted self-reported proactive aggression, and narcissistic exhibitionism positively predicted internalizing symptoms. Narcissism and self-esteem interacted to predict teacher-reported aggression and self-reported internalizing symptoms. Results are discussed in the context of existing theories of narcissism, threatened egotism, and self-perception bias.Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/45298/1/10964_2004_Article_485227.pd