HIRING SHOULDN’T GIVE LICENSE FOR FIRING: AFFORDING THE SAME ACTOR INFERENCE APPROPRIATE WEIGHT
By: Bailey Drexler, Volume 101 Staff Member
In 1991 the Fourth Circuit Court of Appeals articulated what would come to be known as the “same actor inference” in the context of employment discrimination cases. In Proud v. Stone, the court announced that where the hirer and the firer are the same individual, and the time between the hiring and firing is relatively short, there arises a strong inference that the motive for an employee’s termination is not discriminatory. Since the Proud decision, the Circuit Courts have clashed in their application of the inference, attributing various degrees of weight to such evidence. As a result of this inconsistency, the strength of a potential plaintiff’s employment discrimination case is heavily dependent on circuit jurisdiction.
I. ADOPTION AND APPLICATION OF THE SAME ACTOR INFERENCE THEORY
In deciding that a “strong inference” of non-discriminatory motive should exist where the same actor both hired and fired an employee, the Fourth Circuit reasoned that “[c]laims that employer animus exists in termination but not in hiring seems irrational.” Adhering to the precedent set by the Fourth Circuit, the Second Circuit has also repeatedly held that same actor evidence “strongly suggest[s] that invidious discrimination was unlikely.” The majority of the Circuit Courts, including the Fifth, Seventh, Eighth, Ninth, and Tenth Circuits, have also followed suit, adopting a strong inference of non-discriminatory intent where same actor evidence exists. Meanwhile, the Third Circuit has held that same actor evidence does not give rise to an inference, but merely provides relevant evidence to be considered. The Sixth and Eleventh Circuits have offered an intermediary application, creating a permissible—but not mandatory—inference, which a jury may take into account in determining discriminatory intent. The First Circuit has not expressly adopted the inference, but appears to have implicitly approved of the inference without deciding how much weight it should be afforded.
II. A CLOSER LOOK AT THE CONSIDERATIONS BEHIND THE SAME ACTOR INFERENCE
The same actor inference is primarily premised on the notion that it is counterintuitive for an individual to hire an employee from a group that the hirer dislikes, only to fire them soon thereafter. Although the Circuit Courts have consistently held that a plaintiff can overcome even a strong inference of non-discriminatory intent by offering countervailing direct or circumstantial evidence, courts have noted that such evidence much be “egregious” in order to overcome a strong same actor inference. However, the level of egregiousness required dissipates over time. Courts reason that “[t]he inference is less compelling when a significant period of time elapses between the hiring and the firing.” As the Sixth Circuit explained, the amount of time between the hiring and the firing is particularly significant because an animus that did not exist during the period of hiring may develop over time.
Yet, despite the valid rationale behind a strong same actor inference, the variable nature of the specific facts and circumstances in each case may be highly relevant in weighing the strength of the inference. For example, a close examination of the evidence may present the contrary implication, showing that the short duration of time between the hiring and the firing suggests a premeditated plan to terminate the employee as quickly as possible. At times, it may be difficult to readily determine whether the hiring of an individual exemplifies a lack of discriminatory animus toward him or her, or, rather, whether the rapid replacement of the employee indicates a desire to take advantage of the individuals’ skills without any intention of maintaining long-term employment. It may seem intuitive that an employer would be more likely to reject an application based on discriminatory motives rather than hire an employee with a discriminatory intent to fire. Nonetheless, the current pressure to improve workplace diversity, along with the possibility that an employer may hire an individual with a discriminatory intent to “groom” another employee to replace him or her, demonstrates the variable circumstances that may accompany same actor evidence and the range of implications that may follow.
III. A COMMON SENSE APPLICATION OF THE SAME ACTOR INFERENCE
Acknowledging that same actor evidence can arise in a variety of facts and circumstances, applying a strong inference across the board may not always reflect an accurate assessment of the evidence in the case. In fact, a strong inference may often negate the weight of persuasive and credible adverse evidence. While same actor evidence is undoubtedly an important consideration, the amount of weight afforded to the same actor inference is appropriately left to the jury. In entrusting a jury of our peers to determine the outcome of a case, it is inequitable to stack the hand against the plaintiff, particularly where sufficient evidence exists to show pretext for discrimination. Plaintiffs should not be held to a higher evidentiary standard, requiring a showing of “egregious” discrimination to prevail on a valid claim.
Accordingly, the dominant Circuit Court application of the same actor inference, which demands a strong inference of non-discriminatory motive, unfairly tips the scale for the defendant-employer. While the Sixth and Eleventh’s Circuits allow a permissible, not mandatory, inference of non-discriminatory motive, this intermediary application still sanctions, without requiring, a serious imbalance that induces a bias against the plaintiff. This unfairly creates an even steeper uphill battle for the plaintiff’s path to recovery, particularly in difficult or close cases. Thus, because the potential causes and motives behind same-actor evidence are so varied, the Third Circuit’s sister courts should follow its lead in treating same actor evidence as equally persuasive as the other evidence to be considered.
- 945 F.2d 796 (4th Cir. 1991). ↑
- Id. at 797. ↑
- See infra Part I. ↑
- Proud, 945 F.2d at 797 (quoting John J. Donohue III & Peter Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 Stan. L. Rev. 983, 1017 (1991)). ↑
- Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997). ↑
- Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1183 (10th Cir. 2006) (“We take this opportunity to join our sister circuits and announce that in cases where [same actor evidence exists], there is ‘a strong inference that the employer’s stated reason for acting against the employee is not pretextual.’”) (quoting Proud, 945 F.2d at 797–98); Herr v. Airborne Freight Corp., 130 F.3d 359, 362–63 (8th Cir. 1997) (giving a strong inference of non-discriminatory intent to same-actor evidence in a sex discrimination case); Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996), abrogated on other grounds by Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) (expressly approving of the same actor inference as applied in Proud); EEOC v. Our Lady of Resurrection Med. Ctr., 77 F.3d 145, 152 (7th Cir. 1996) (stating that the same actor inference “has strong presumptive value”); Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270–71 (9th Cir. 1996) (applying a “strong inference”). ↑
- See Waldron v. SL Industries, Inc., 56 F.3d 491, 496 n.6 (3d Cir. 1995). The Third Circuit agreed with the Equal Employment Opportunity Commission that same actor evidence “is simply evidence like any other and should not be accorded any presumptive value.” Id. (quoting Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiff-Appellant, Waldron v. SL Industries, Inc. 56 F.3d 491 (3d Cir. 1995) (No. 94-5282), 1994 WL 16015118, at *22. ↑
- Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 573 (6th Cir. 2003) (“Although the factfinder is permitted to draw [the same actor] inference, it is by no means a mandatory one, and it may be weakened by other evidence.”) (citing Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 464 (6th Cir. 1995)); Williams v. Vitro Services Corp., 144 F.3d 1438, 1443 (11th Cir. 1998) (“[W]e decline to accord to this ‘same actor’ factual circumstance a presumption that discrimination necessarily was absent from the decision to terminate . . . . We nonetheless believe that these facts may give rise to a permissible inference that no discriminatory animus [existed].”). ↑
- See Pina v. Children’s Place, 740 F.3d 785, 786 n. 10 (1st Cir. 2014) (noting that the district court had applied the inference, but deciding the case without applying the inference); LeBlanc v. Great American Ins. Co., 6 F.3d 836, 847 (1st Cir. 1993) (citing Proud and appearing to accept the same actor inference without much discussion). ↑
- See Donohue & Siegelman, supra note 4, at 1017. ↑
- See, e.g., Brown, 82 F.3d at 658; Our Lady of Resurrection, 77 F.3d at 148. ↑
- See Brown, 82 F.3d at 658; Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991). ↑
- Carlton v. Mystic Transp., Inc., 202 F.3d 129, 138 (2d Cir. 2000). ↑
- Buhrmaster v. Overnite Transp., Co., 61 F.3d 461, 464 (6th Cir. 1995). ↑
- See, e.g., Waldron v. SL Industries, Inc., 56 F.3d 491, 496 n.6 (3d Cir. 1995) (explaining that “it was plausible under the evidence . . . that [the defendant] would hire [the plaintiff], use his skills for a few years while a younger person was being ‘groomed’ for the position, then fire [the plaintiff] because of his age.”) (citing Brief of the Equal Employment Opportunity Commission, supra note 7, at 22–23). ↑
- See, e.g., Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir. 1992) (“It is simply incredible, in light of the weakness of plaintiff’s evidence otherwise, that the company officials who hired him at age fifty-one had suddenly developed an aversion to older people less than two years later.”) ↑
- See, e.g., Waldron, 56 F.3d at 496 n.6. ↑
- See Philip M. Berkowitz, Gender, Diversity, European Quotas, and U.S. Law, Littler (Sep. 10, 2015), https://www.littler.com/publication-press/press/gender-diversity-european-quotas-and-us-law; Matt Timms, Tech Companies Are Competing to Be the Most Diverse, New Economy (Jan. 13, 2016), http://www.theneweconomy.com/strategy/tech-companies-are-competing-to-be-the-most-diverse. ↑
- See supra note 15. ↑