ARTICLE: The Rise of the Personal Animosity Presumption in Title VII and the Return to "No Cause" Employment Skip over navigation
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Copyright (c) 2003 Texas Law Review
Texas Law Review

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

April, 2003

81 Tex. L. Rev. 1177

Author

Chad Derum* & Karen Engle**

Excerpt

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.

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