Here’s one easy way to cut down on lawsuits when you have to fire an employee: Have the same person who hired or last promoted the employee also make the final decision on termination.
Courts often conclude that it would make no sense for those who hired or promoted someone to turn around and fire that same person for discriminatory reasons. This is called the “same-actor” defense.
Recent case: Troy Cordell worked for Verizon, selling phone services. The company has a rule that prohibits employees from handling transactions involving relatives.
Cordell, who is black, admitted that he had handled such transactions. Verizon fired him.
Cordell sued, alleging that white employees who broke the same rule hadn’t been fired. However, he didn’t offer any solid proof.
The employer argued that there was no way that those who fired Cordell could have been biased, because the two involved—a supervisor and an HR manager—had just promoted Cordell a few weeks earlier. It wouldn’t make sense, the company argued, for prejudiced supervisors and managers to promote someone and then fire that person weeks later.
The 2nd Circuit Court of Appeals agreed. (Cordell v. Verizon Communications, et al., No. 08-2616, 2nd Cir., 2009)
Final note: For the same-actor defense to succeed, you have to make a regular practice of having the same people who make the hiring and promotion decisions also make the discharge decisions. You can’t apply the rule sporadically or when you suspect the employee will sue. Make it standard practice.
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