By Tenechia Lockhart
In employment discrimination claims, the same actor inference allows the factfinder (the judge in a bench trial and the jury in a jury trial) to infer that a supervisor who hires or shows favorable treatment to an employee, will not later act in a discriminatory manner based on the employee’s protected class status.
Take this example, for instance. Bob is hired at the age of 41 years old by John his supervisor. Four years later when Bob is 45 years old, John terminates Bob. If Bob sues his employer for impermissible age discrimination, the same actor inference would permit the factfinder to infer that John did not have discriminatory animus towards Bob because John favored Bob by hiring him.
An important aspect of the same actor inference to consider is the time between the favorable action, i.e. hiring and the adverse action, i.e. termination. The shorter the time interval between the two actions, the stronger the inference becomes. The District of Nevada has held that an interval of almost seven years still invoked the inference. See Hansen v. Clark County, No. 2:05, CV-672-BES-VPC, 2007 WL 1892127, at *8 (D. Nev. June 27, 2007).
Criticism over the same actor inference has not been light. The inference ignores the “glass ceiling” effect, where a supervisor might approve of hiring a person for a particular position but be biased against promoting that person to a different position. For example, a supervisor might not have a problem hiring a woman as a secretary, but may not want to promote women to positions with higher levels of authority. The inference ignores that supervisors may receive pressure from others to later treat an individual differently because of a protected trait. It also ignores that a supervisor might treat an employee negatively for not living up to race or gender expectations. For example, during an interview the supervisor might perceive a woman as docile, but then later terminate her for being “too bossy,” even though men would not be terminated for the same behavior. From a procedural perspective, it is unclear how the same-actor inference fits into existing frameworks and whether it is ever appropriate for a judge to invoke the inference when factual questions exist.