"Same Actor" Defense
by Chuck Post
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.
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