Best Ohio Employment Discrimination Attorney Answer: What is the “same actor” inference? Will my race discrimination case fail if I was hired and fired by the same person? Does it matter how long ago I was hired?
Defendant employers will often raise something called the “same actor” inference as a defense in discrimination claims. The same actor inference defense basically goes like this: “If I am a discriminator, why would I have hired them in the first place?” The closer in time the alleged discriminatory act is to the hiring, the strong the inference.
As intuitive as this logic seems, it suffers from many flaws. First, it is too simple an answer to fully respond to the many subtleties of prejudice, which is rarely an “on/off” switch. A racist manager may hire an African American only because they can find no one else qualified at the time. Another manager might hire a female, only to later end up discriminating against her because she doesn’t act “feminine” enough on a daily basis at work, or when she becomes pregnant. Indeed, race discrimination lawyers have even seen cases where a manager only began to discriminate against an African American employee he hired when she began acting “too Black.” We have seen managers that hire African Americans to do lower end jobs but not give them the same leeway as Caucasian workers.
Perhaps recognizing this, the Sixth Circuit Court of Appeals (Ohio) has limited the applicability of the same actor inference. In Wexler v. White’s Fine Furniture, the Court found that the same actor inference was really just evidence, which could be overcome or weakened with other evidence. Therefore, the Court concluded that it was inappropriate for courts to allow a case to be dismissed on summary judgment when there is some evidence of discrimination. Specifically, this Ohio federal court held:
[Courts] are split on the amount of weight that should be given to the same-actor inference. Some have found it quite persuasive. A number of these courts have concluded, however, that the same-actor inference was sufficient to warrant summary judgment only where the plaintiff’s evidence of discrimination was otherwise weak, even though sufficient to survive summary judgment but for the fact that the same person both hired and fired the plaintiff.
Other [courts] have minimized the importance of the same-actor inference, emphasizing that although a court may infer an absence of discrimination where the same individual hired and fired the plaintiff, such an inference is not required.
This latter approach is more consistent with the requirement that, in considering a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. We therefore reject the idea that a mandatory inference must be applied in favor of a summary-judgment movant whenever the claimant has been hired and fired by the same individual. Although the factfinder is permitted to draw this inference, it is by no means a mandatory one, and it may be weakened by other evidence. We therefore specifically hold that where, as in this case, the factfinder decides to draw the same-actor inference, it is insufficient to warrant summary judgment for the defendant if the employee has otherwise raised a genuine issue of material fact.
Thus, unless there is absolutely no evidence of discrimination, the same actor inference is nothing to worry about at motion stage – meaning that your case should get to a jury. This is critical, because a vast majority of cases will settle and the case gets even stronger for employees once a trial court refuses to dismiss the case as a matter of law. This case takes away one more argument that employers can use to get that dismissal as a matter of law and avoid a jury. And really, if there is no evidence of discrimination in your discrimination case, you probably have bigger problems than the same actor inference anyways.
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