Same Actor Inference

posted by Neil Klingshirn  |  Jul 11, 2008 07:14 AM [EST]  |  applies to Ohio

The "same actor inference" is a defense theory based on the logic that a discriminatory employer will not hire a person in a protected class. Therefore, the logic goes, where the same person hires the employee and fires him or her within a short period of time, especially where the employee's class has not changed, some courts infer an absence of discriminatory intent in the firing. 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).

"Psychological Costs" of Association

From the standpoint of the putative discriminator, "it hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them), only to fire them once they are on the job." Thus, the court created the following rule:


Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 463 (6th Cir. Ohio 1995).

Limits on the Same Actor Inference

Logically, the same actor inference suffers from the assumption that employers who harbor discriminatory intent will always act on it, at least when hiring. This is questionable and should be critically examined in any case. For example, if the only qualified candidate is within the protected age class, the discriminatory employer might accept the "psychological costs" of associating with applicant, at least until someone not in the disfavored class is available.

The Sixth Circuit limited the same actor inference in Wexler v. White's Fine Furniture, 317 F.3d 564, 574 (6th Cir. Ohio 2003), especially when considered on summary judgment. Wexler noted that the facts in Buhrmaster did not contain any direct evidence of stereotyping from which a discriminatory intent could be proven. The evidence against the employer, in fact, was rather weak. Moreover, the Buhrmaster court was reviewing a jury verdict and jury instructions. Rather than weighing the evidence, as the district court did in this case, the court in Buhrmaster was simply evaluating the rationality of the jury's verdict, and whether or not the jury could properly apply such an inference.

Wexler also noted that the other federal circuits are split on the amount of weight that should be given to the same-actor inference. Some have found it quite persuasive. See, e.g., Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 271 (9th Cir. 1996) (holding that the plaintiff's evidence was insufficient as a matter of law to rebut the strong same-actor inference); Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 174 (8th Cir. 1992) ("The most important fact here is that plaintiff was a member of the protected age group both at the time of his hiring and at the time of his firing, and that the same people who hired him also fired him."); Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991) (urging the early dismissal of cases where the same individual both hired and fired the plaintiff).


Wexler concluded by rejecting 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.

References

1. Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 463-64 (6th Cir. 1995)
2. Lowe v. J.B. Hunt Transp. Inc., 963 F.2d 173 (8th Cir. 1992)
3. Stockman v. Oakcrest Dental Ctr., P.C., 480 F.3d 791, 801 (6th Cir. Mich. 2007)
4. Wexler v. White's Fine Furniture, 317 F.3d 564, 574 (6th Cir. Ohio 2003)

External Links

• Ross Runkel's Employment Law Blog - Same Actor Inference
  

posted by Neil Klingshirn  |  Jul 11, 2008 07:14 AM [EST]  |  applies to Ohio