“Same Actor” Defense
August 26 2010
I was recently asked something of a “desert island” question. Instead of being asked what 10 records or 10 movies I would take to a desert island, I was asked, “If an employer could only do one thing to reduce its exposure to employment discrimination liability, what should it do?” Shooting from the hip, I said, “Whenever you can, have the same actor who hires an employee be the person who disciplines or terminates them.” This practice or strategy doesn’t immunize an employer against discrimination claims, but: “Where the same actor is responsible for both the hiring and firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.” The rationale underlying this doctrine is that from the standpoint of the alleged discriminator, 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.) This concept has also been applied where the alleged discriminator promoted the plaintiff before taking later adverse action against him or her.
A recent California Court of Appeals case, Nazir v. United Airlines, states the rule in a useful way for employers. “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.” (Nazir v. United Airlines, Inc.)
This strategy is not a magic wand. It does not render employers invulnerable to discrimination claims. That fact is illustrated by the Nazir case where the Court of Appeal closely examined the facts presented on motion for summary judgment and determined that the “same actor” defense did not protect the employer. That said, the “same actor” inference is such that it merits strategic consideration by employers. Can we the employer, without increasing the burden or complicating the administration of the hiring and employee management process, involve the same actors throughout the employment management process? This strategy would require employers to include supervisors (along with an executive or HR representative) in the hiring process and involve those same persons in discipline and termination decisions. Many companies already have such policies but as the cases discussing the “same actor” inference demonstrate, such a strategy may help reduce an employer’s exposure to employment discrimination liability.