When the same person does the hiring and firing, can there really be any discrimination?


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Consider this example: A supervisor hires someone who is over 40 years of age. Not long after, the same supervisor fires that same employee.

What are the odds that age motivated the termination of employment?

(Remember, that the supervisor voluntarily hired the same over-40 employee too.)

This is called the same-actor inference and, when it applies, the plaintiff has a hecka-high (sorry, about the legal jargon) burden to overcome to demonstrate that his/her protected class motivated the termination of employment.

Basically, that’s what happened in this recent opinion from a Hawaiian federal court. A senior member of human resources hired a 55-year-old employee in September 2015, and terminated his employment less than a year later.

The separated employee claimed that his age motivated the employer’s decision. However, the court applied the same-actor inference against which the plaintiff failed to present a “strong case of bias necessary to overcome this inference.” Indeed, he conceded that he didn’t make sales quotas. And while this was evidence, it was bad evidence, and he lost.

But, hold up. Wait a minute.

Let’s change the facts a bit. What happens, if between hire and fire,

  • the employee complains about discrimination; or
  • the person who does the hiring learns that the employee is pregnant or has a disability; or
  • The employee requests FMLA leave.

There could be any number of intervening acts/discoveries that eviscerate the same-actor inference. So, while it may sometimes provide a good defense to a discrimination claim, your mileage may vary.

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