Can companies exit bias lawsuits by arguing that the same person hired and fired the plaintiff?

Suppose your company hires a black man only to fire him less than a year later. If the man claims that his race motivated the termination decisions, would arguing that the same person made both employment decisions create a viable defense?

It’s called the “same-actor inference.” As a New York federal judge recently described it, “where the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to [that decisionmaker] an invidious motivation that would be inconsistent with the decision to hire.”

In the fact pattern I’ve described above, it seems a stretch that the decisionmaker would suddenly become racist in less than a year between hiring and firing. Indeed, the same federal judge noted that “this inference is a highly relevant factor in adjudicating a motion for summary judgment, particularly when the firing has occurred only a short time after the hiring.”

But the same-actor inference isn’t a silver bullet.

In that recent decision I read, the inference didn’t carry much weight at all. Why, you ask? Because there was evidence that more than one person made the hiring and firing decisions. At summary judgment, after all of the documents had been exchanged in discovery and the depositions had been taken, the degree to which the supposed “same actors” were involved in both employment actions remained unclear.

For example, the defendant identified one company representative who made both decisions. We’ll refer to this person as “Jane.” However, the plaintiff pointed to sworn testimony that the hiring decision involved Jane and others. Indeed, the evidence showed that Jane merely screened the plaintiff when he applied for the positions, and to the extent that Jane further evaluated the plaintiff, she did so as part of a larger hiring committee. Three committee members played no role in the plaintiff’s termination of employment.

Another witness corroborated that the hiring committee reached its decisions by “consensus,” though he did not recall whether any member opposed hiring the plaintiff. Plus, their rankings of the plaintiff were anonymous.

So, who actually championed the plaintiff’s hire? One witness testified that three committee members besides Jane pushed to hire the plaintiff. Jane disagreed, claiming she was the hiring manager who typically made the hiring decisions. In this case, Jane signed and sent the request to hire the plaintiff. However, the court noted that Jane wrote the letter from the perspective of “we,” not “I,” and stated that “the team felt that [the plaintiff] was the strongest candidate.”

Ultimately, the same-actor inference is much weaker when it is unclear who primarily makes these decisions. Given the disputed facts about who may have been involved in the plaintiff’s hiring and firing, the same-actor inference carried minimum weight.