A Business Can Be Found Guilty of Discrimination Even When the Same Person Who Hires an Employee Fires that Employee

When it comes to discrimination in the workplace, employers sometimes ask themselves, “How could a decision to fire an employee be biased when the same supervisor made the decision to hire the employee?” Stated differently, “If we intended to discriminate, we would not have hired the individual in the first place. Shouldn’t the fact that we hired the individual be enough to show that the later decision to fire that individual was not motivated by bias? Isn’t this an open-and-shut case?”

Recently, the Seventh Circuit Court of Appeals answered that question and addressed a common misunderstanding concerning evidence in discrimination cases and the appropriate standard at summary judgment. In McKinney v. Office of Sheriff of Whitley County, No. 16-4131, 2017 WL 3389370 (7th Cir. Aug. 8, 2017), the sheriff hired, and later fired, the first African-American police officer employed by Whitley County. The plaintiff filed suit against his former employer, alleging race discrimination. The sheriff moved for summary judgment, which the trial court granted, but the Seventh Circuit Court of Appeals reversed, finding that the trial court had applied the incorrect standard and that the plaintiff’s evidence was sufficient to survive summary judgment. Although the opinion has several interesting aspects, the most important part of the decision involves the Court’s discussion of the “common actor” inference and the common misimpression by employers, and some attorneys, that think nondiscrimination should be conclusively established when a supervisor fires an employee after previously making an unbiased decision to hire that employee.

“The common actor inference says it is reasonable to assume that if a person was unbiased at Time A (when he decided to hire the plaintiff), he was also unbiased at Time B (when he fired the plaintiff).” Perez v. Thorntons, Inc., 731 F.3d 699, 710 (7th Cir. 2013). However, it is only an inference and the Seventh Circuit “clarified that this inference is not a conclusive presumption and that it should be considered by the ultimate trier of fact rather than on summary judgment or the pleadings.” McKinney, at *9 (citation omitted).

The Seventh Circuit made clear that the common actor inference is not relevant to any determination at the summary judgment stage of litigation. Employers, often eager to prevail at summary judgment, should, therefore, be careful to note the difference between a presumption and an inference. Under the burden-shifting framework in which the Courts handle discrimination claims, a party meeting a burden may receive a presumption in its favor (at least until the other side meets its own burden). However, inferences are of less value and do not shift a burden or establish anything as a matter of law. A jury may consider evidence and infer that the same supervisor who was unbiased when hiring a person was also unbiased in firing that person. However, whether to make that inference and how much weight to give it, are pure questions of fact for the jury to decide at trial.

The Court gave a few examples of situations in which discrimination could occur despite the same supervisor hiring and firing the employee. The same supervisor may fill the position quickly to meet an urgent need, and once that urgent need is gone, could fire the employee due to unlawful bias. The same supervisor could both hire a woman and then refuse to promote her for discriminatory reasons or fire her because she became pregnant. Or, as the Court found in McKinney, the same supervisor could hire the county’s first African-American police officer, hoping that there would be no friction in the workplace, but upon discovering that other officers would not accept their new African-American colleague, fire the African-American officer because of his race based on the mistaken notion of the “greater good” of the department. Id. at *10.

Thus, evidence that a supervisor made an unbiased decision to hire an employee is not conclusive as to whether any bias, prejudice, or discriminatory intent occurred during that supervisor’s termination of the employee. Whenever possible, employers should consult counsel before making sensitive employment decisions involving employees in protected classes. As you can see, relying upon the common actor defense may prove to be not enough.

The authors Jerod A. Adler and Robert T. Keen, Jr. focus their practice in the area of:  Litigation Services.

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