The “Same Actor Inference” in Employment Discrimination Law

In employment discrimination law, the so-called “same actor inference” holds that “[w]hen the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to [him] an invidious motivation that would be inconsistent with the decision to hire.” Orellana v. Reiss Wholesale Hardware Co., No. 14 CV 1913 (NGG)(LB), 2016 WL 4480720, at *7 (E.D.N.Y. June 8, 2016).

Defendants often invoke the doctrine in order to attempt to escape liability for discrimination or retaliation.

It is not an ironclad rule, but rather must be evaluated in the context of all the facts and circumstances of the case.

For example, in Philip v. Gtech Corp., No. 14 CIV. 9261 (PAE), 2016 WL 3959729, at *14 (S.D.N.Y. July 20, 2016), the court declined to apply it, reasoning:

First, the inference is not dispositive where others—notably, the inference of discrimination that can be drawn from racist slurs—strongly cut the other way. … Second, there is evidence that [the alleged discriminator/harasser] was not the ultimate decisionmaker with respect to Philip’s hiring (although it is undisputed that he recommended Philip and played a significant role in his hiring). These considerations substantially vitiate the same actor inference.