When you need to terminate an employee, it makes sense for the same manager who hired the employee to also pull the trigger on the firing. That bit of legal strategy—the so-called "same actor defense"—could help you defend a discrimination lawsuit down the road.
Reason: If the supervisor who fires an employee also hired the individual, it will be a lot harder for the employee to claim the termination was due to discrimination (at least when the employee alleges discrimination based on an obvious characteristic, such as race or gender).
If you use the same-actor defense, it's up to the fired employee to overcome the inference that the decision was not discrimination. This defense is no guarantee, but it does force employees to prove that underlying discrimination is the real reason for the discharge.
Recent case: Sygma Networks used a four-person hiring committee to choose Gladys Antonio, a black woman from Zimbabwe, for an accounting position. The decision was unanimous, and all four committee members knew Antonio's race and nationality.
Months later, one of the committee members and Antonio's direct supervisor told Antonio she had offensive body odor and that the reason might be her culture. Antonio complained, and the company warned the supervisor to be more sensitive.
Nine months after that, Antonio failed to show up to work for four days. The hiring committee fired her for job abandonment. (She said that she had returned to Zimbabwe for a visit but phone problems prevented her from notifying the company about her flight delay.)
She filed a race discrimination lawsuit, claiming the firing was retaliation for her odor-comment complaining. A federal appeals court disagreed, concluding that it made no sense for the same committee, obviously aware of Antonio's race and national origins when it hired her, to fire her for those very reasons a year later. Antonio would have to come up with convincing proof that more was at work. Without more proof, the court applied a presumption of legitimacy to the committee decision. (Antonio v. The Sygma Network, No. 05-1374, 10th Cir., 2006)
- Keep careful track of work-restriction notes
- When customers practice discrimination, employer may pay
- Workplace tiff doesn't mean workplace was necessarily a hostile environment
- Have attorneys monitor other lawsuits that may have been filed by class-action members
- Ensure you can justify gender pay disparities