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‘One who hired also fired’ doesn’t remove discrimination hook

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in Firing,Hiring,HR Management,Human Resources

It’s logical, right?  When the same person who hired and promoted an employee eventually terminates that employee, there couldn’t have been any discrimination. After all, the hiring supervisor didn’t discriminate at selection time, so why would she discriminate at discharge time?

Unfortunately, employers can’t rely solely on this same-actor defense in court. Although this argument can be part of your defense, a judge won’t give it more weight than any other evidence. It won’t create a presumption that the employer didn’t discriminate.

Recent case: Nita White-Ivy hired Marietta Harvey as an HR representative at Pyramid Technology. White-Ivy headed the HR department at Pyramid. Both Harvey and White-Ivy are Filipina. White-Ivy promoted Harvey to HR manager a year later.

White-Ivy then moved on to Sybase, where she headed up the organization’s worldwide HR. White-Ivy then hired Harvey as an HR director, and repeatedly promoted Harvey through the ranks until Harvey was a group HR director. White-Ivy created the job especially for Harvey, who enjoyed regular raises and high praise.

Then things started going wrong. After a senior manager commented that the HR office looked like “an airport,” White-Ivy apparently began looking for ways to bring more white males on board, telling another HR employee that there were too many Asians in the HR department.

Potentially discriminatory comments became more frequent, and White-Ivy was overheard saying things like, “We need more men in this department because there is too much gossip,” and “We have too many women because all these people are pregnant and going out on leave.”

Then Harvey’s performance allegedly declined, and White-Ivy warned her she might be demoted. She then fired Harvey at about the same time that she hired two white men for HR positions.

Harvey sued under the California Fair Employment and Housing Act (FEHA) and federal law. A jury awarded her $1,342,943 in compensatory damages, plus another $500,000 in punitive damages.

The company appealed, arguing that the court should have given special weight to the fact that the same person who hired and promoted Harvey also fired her. Therefore, it argued, the jury should presume that there was no discrimination at play.

The court rejected that reasoning. It considered the case as one of mixed motives, in which perhaps both legitimate and illegal factors were used to decide whether to fire Harvey. It said Harvey would have to show that discrimination was a motive for the firing. The employer would have to show that it would have taken the same action even if it had not taken the prohibited characteristics into consideration (in this case, race and sex). The jury will then have to weigh all the evidence—of which the same-actor information is just one part.

The company argued strongly for an inference of no discrimination, but the court said there was no per se same-actor rule. It said it is up to a jury to sort out the evidence, including any same-actor evidence. (Harvey v. Sybase, No. A109300, California Court of Appeal, 1st Appellate Division, 2008)

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