It may be a good idea to track who in your organization makes the decisions to hire specific employees. That way, those managers can also be part of the decision to discharge employees who turn out to be duds.
Why? Because employees—even members of a protected class (i.e., race, sex, age, etc.)—will have a hard time arguing that bias played a role in their dismissal if the same person who fired them also hired them.
This is what courts refer to as the “same-actor inference.” Basically, if an applicant is hired (despite membership in a protected class) and then fired by the same person, bias seems an unlikely reason.
The rationale: Why would someone hire a minority, a woman or an older applicant if he or she were biased against minorities, women or older people?
Recent case: Bernard White, who was over 40 years old, was hired by a business associate to work for Omega Protein Corporation, a fishing company. Five years later, that same associate fired White because of .
White sued, alleging age discrimination. But Omega pointed out that the same person who hired White also fired White. Plus, the person who fired White was also over 40 years old. The court applied the “same-actor inference” and dismissed the case. (White v. Omega Protein, No. 05-20630, 5th Cir., 2007)
- Employee can't claim constructive discharge on what might happen in workplace
- Beware firing worker who sleeps with the enemy
- What do employees want from their managers?
- Don't expect access to employees' past job records to prove poor performance
- Beware 'aggravated misconduct' firings--unemployment benefits hang in the balance