“SAME ACTOR” INFERENCE/DEFENSE IN EMPLOYMENT DISCRIMINATION

The “same actor inference” is a defense which asserts that an employer with tendencies to engage in discriminatory practices will not hire a person in a protected class. If the employer is accused of discriminating against an employee is the same person who hired the employee, an inference can be made that discrimination was not intended or did not occur.  It is a logical inference that, if a manager dislikes blacks or females (for example), he/she is not likely to hire them in the first place.  That is, one is not likely to hire someone who belongs to a protected class and then discriminate against them once they are brought on board.

Courts have justified the inference on the grounds that it was “incredible . . . that the company officials who hired [an employee] at age fifty-one had suddenly developed an aversion to older people two years later.” Burhmaster v. Overnite Transp. Co., 61 F.3d 461, 463 (6th Cir. Ohio 1995).  Remember that “incredible” in this sense means “not credible.”

It is called the “Same Actor” defense because, where the same manager (or “actor”) is responsible for both the hiring and firing (or other adverse employment action) for a discrimination employer, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.  According to one court, it “hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological cost of associating with them), only to fire them once they are on the job.”  Horn v. Cushman & Wakefield Western, Inc., 72 Cal. App. 4th 798, 85 Cal.Rptr.2d 459  (1999).

This theory also has been applied where the same discriminatory official promoted the employee before taking later adverse action against him/her.

Another in another recent holding, Nazir v. United Airlines, 178 Cal.App.4th 243 (2009), the court explained this defense and resulting presumption another way. “The same actor inference is neither a mandatory presumption (on the one hand) nor a near possible conclusion for the jury to draw (on the other). Rather, it is a strong inference that a court must take into account on a summary judgment motion. The upshot of this rule is that by having the same actor(s) who make hiring or promotion decisions also make discipline and termination decisions, the employer can increase the burden a current or former employee must meet in order to prevail against the employer. “When the allegedly discriminatory actor is someone who is previously selected the plaintiff for favorable treatment, it is very strong evidence that the actor holds no discriminatory animus, and the plaintiff must present correspondingly stronger evidence of bias in order to prevail.”

In the facts in this case, which were presented on a motion for summary judgment, the court concluded that the “same actor” defense did not protect the employer.

The “same actor” defense is just one of many facets of an employment discrimination case and the reader should consult an attorney or hearing representative for more details.  John Joseph Zodrow of Denver worked for the Postal Service for nine years and handled claims, such as employment discrimination claims, brought against the Agency.  He also worked for two other federal agencies.  In the 20 years since leaving federal employment, Mr. Zodrow has represented thousands of federal employees and other workers in employment discrimination claims.  At the time he retired from the practice of law in September of 2009, Mr. Zodrow had been involved in over 2200 employment cases as plaintiff’s (employee’s) representative, defendant’s (employer’s) representative, supervising attorney, arbitrator, mediator, consultant, expert witness or otherwise.

To date, the Postal Service (alone) has paid Mr. Zodrow’s firms nearly $3,000,000 in attorney fees/costs alone, and has paid his clients millions more.  Mr. Zodrow continues to act as an employee’s representative or employer’s representative in administrative hearings on a variety of matters including employment claims.

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