DECEMBER 2005

DISCRIMINATION DIFFICULT TO PROVE WHEN DEMOTION DECISION MADE BY THE "SAME ACTOR"

In a recent decision filed under Title VII, an employee sued his employer for discrimination on the basis of national origin following his demotion for poor performance. The decision to demote the employee was made by the same supervisor who had previously promoted the employee (known as a "same actor”).

The employee was unable to present anything more than "circumstantial evidence” to support his allegations of discrimination and had no "direct evidence” of discrimination such as a discriminatory remark or other action to prove a discriminatory animus by the Supervisor making the demotion decision. For this reason, the trial court granted the employer’s motion for summary judgment (a pre trial motion requesting the court decide the case without a trial) finding that the evidence presented by the employee to prove discrimination was insufficient especially when the "same actor” defense was asserted by the employer.

The "same actor” defense asserts that when the person who hired the employee was the same person who fired (or in this case demoted ) the employee, there could be no inference of national origin discrimination without more direct evidence. The employee appealed the court’s decision to grant the pre trial motion.

The Court of Appeals upheld the lower court’s ruling and held that if an employee presents only "circumstantial evidence” of discrimination, the evidence must be so "specific and substantial” to defeat the employer’s argument that no discriminatory decision had been made. The Court noted that when the same person hired and fired (or in this case promoted and then later demoted) the employee within a relatively short period of time, a strong inference arises that there was no discriminatory action by the "same actor” in the demotion decision.

Any decision made by the “same actor” should still be thoroughly documented as the "same actor" defense does not automatically entitle the Employer to a dismissal of the action.

Discrimination Defense - Same Actor - Dec 2005

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