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‘Same-actor’ defense won’t always work; establish unbiased reasons for firings

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in Discrimination and Harassment,Firing,Hiring,HR Management,Human Resources

When the person who hires someone is the same one who conducts the firing, courts typically discount the idea that discrimination was involved. After all, why would someone who hired an applicant discriminate later because of that person’s age, race or sex, especially if it’s obvious the hiring manager knew the applicant belonged to that protected class?

That’s why it’s a good idea to have the person who did the hiring also make the final termination decision.

But be aware that the defense doesn’t always work if there is clear discrimination evidence. That’s what happened in the following case.

Recent case: Billy Curry, who is black, was hired to work as a painter. He was originally hired by the company’s HR manager, who is white. A year later, the same HR manager fired Curry, who sued for race discrimination.

The company said it fired Curry because an insurance inspector observed two painters whom she could not identify working without protective gear.

That’s when the HR manager fired Curry and suspended another, white, employee because they allegedly were the two without proper gear.

But a third employee testified that he had been pressured to lie about who was not wearing the gear and threatened with termination if he didn’t play along. Plus, the company couldn’t find anyone to testify that they saw Curry without the gear. That was enough evidence for the court to reject the same-actor defense and order a jury trial. (Curry v. Telect, No. 3:08-CV-0933, ND TX, 2009)

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