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:

in cases where the hirer and firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer." J.B. Hunt, 963 F.2d at 175 ("It is simply incredible . . . that the company officials who hired [an employee] at age fifty-one had suddenly developed an aversion to older people two years later.").

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).

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. Bradley, 104 F.3d at 270 (noting that the plaintiff "produced no meaningful evidence indicating either that [the employer's] proffered explanation was false or that her supervisor harbored discriminatory animus towards her because she was a woman"); Lowe, 963 F.2d at 174-75 (holding that the same-actor inference warranted summary judgment because the plaintiff's evidence of pretext was "thin").

Other circuits 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. Haun v. Ideal Indus., Inc., 81 F.3d 541, 546 (5th Cir. 1996) ("While evidence of [same actor] circumstances is relevant in determining whether discrimination occurred, we decline to establish a rule that no inference of discrimination could arise under such circumstances."); Waldron v. SL Indus., Inc., 56 F.3d 491, 496 n.6 (3d Cir. 1995) (noting that the same-actor inference "is simply evidence like any other and should not be afforded presumptive value").

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.

Such an approach strikes us as being contrary to the Supreme Court's opinion in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). 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.


  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)

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

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Neil Klingshirn
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