The Same Actor Defense Requires the Same Stage

Employment defense lawyers are fond of the “same actor” defense to discrimination claims because it combines legal theory and common sense. The same actor inference can be used in cases based on claims of discrimination on account of characteristics such as race, gender or ethnicity, where the same supervisor both hired and fired the plaintiff. The defense also applies to age discrimination claims if the firing occurs only a short time after the hiring.

Both judges and juries are inclined to accept the logic that if the person who made the decision to fire an employee is the same person who made the decision to hire, it is hard to impute an illegal bias that would be inconsistent with the initial hiring decision. It is not really believable that a supervisor harboring a bias against female employees, for example, would hire a woman only in order to fire her  a short time later.  Since the employee’s protected characteristic would not have changed, it follows that something in the employee’s performance must have changed, creating a legitimate reason for discipline or discharge.

Conversely however, if the protected characteristic does change, and the employee is fired shortly thereafter, the opposite inference is raised. In a recent decision in the Superior Court at Bridgeport  in the case of Montague v. Accelent, Inc., a female employee was hired by the hiring supervisor, and then fired by the same person about seven months later.  What had changed was that the employee became pregnant and gave notice that she would be taking maternity leave.  The employer moved to dismiss the case based on the same actor defense, but the court denied the motion and ruled that the pregnancy meant that the circumstances had significantly changed in a short period of time .  The actor may have been the same but the stage setting was different, allowing the inference of a discriminatory motive for the termination.

The first question to ask in reviewing an employment termination is, what has changed? If the termination is of a long-time employee, there should be a measurable decline in performance.  If a new hire is being terminated, it should be demonstrable that performance did not live up to expectations.  The same actor defense can provide a plausible inference of non-discrimination, but it must still be supported by the facts.