Employers are often advised to have the same managers who hired an employee also make the termination decision. The idea is that doing so may scuttle a discrimination lawsuit because it’s illogical for a manager to hire a member of a protected class and then turn around and fire him because of bias against that protected class.
This is the so-called “same actor” defense.
Don’t use it as an excuse to get sloppy with record-keeping and documentation. The same-actor effect fades over time, and courts rarely apply it to employment that lasts longer than three years. Approach every termination with solid evidence justifying your decision.
Recent case: Stephen Allen went to work for JP Morgan in 2001 on the recommendation of the two men who would become his direct supervisors. Allen was over age 40.
At first, Allen did well. Then his co-workers began complaining about his and his tendency to make deals without getting company input and approval. He was asked to resign in 2005.
Allen sued for age discrimination, claiming the company was biased against older employees.
JP Morgan argued that the same supervisors who hired Allen also fired him. But the court said it had been too long for the same-actor presumption to apply. The court said it was reluctant to use the defense when employees have worked for the company for three years or more. (Allen v. JP Morgan Chase, No. 06-CIV-8712, SD NY, 2009)
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