A Federal District Court in the Western District of North Carolina has dismissed a claim of race discrimination by an African-American Lowe’s employee who was fired after seven months of employment. The Court found that the same person who hired him had made the decision to terminate his employment. This fact, according to the Court, created a strong presumption that the discharge was not motivated by unlawful bias, or the person would not have hired him in the first place. The Court noted that seven months is a short enough time span between the hiring and discharge to invoke the same actor rule. That rule relies on the logical principle that someone who is biased will show the bias through hiring decisions, not just by firing employees. Why would a racist hire a person only to try to fire that person soon after? (Critics of the same actor rule do note that there may be circumstances where exactly that does take place.)
The Court also found that the inference was not negated by the decision-maker having contacted Lowe’s human resource department for advice. According to the Court, human resources “simply served as a sounding board” and the human resource department did not make the termination decision.
Importantly, the Court held that in order to defeat the same actor presumption, a discharged employee must bring forth “egregious evidence” of race discrimination in order to rebut the inference. In this case, the alleged facts that the decision-maker had taken Caucasian employees to lunch but never the discharged employee, and that he referred to a magazine as being marketed to African-Americans were not sufficiently egregious to rebut the inference.
If you are interested in the full decision, the case can be found at Pulliam v. Lowe’s Co.
This case and others like it are instructive particularly in the termination of new hires. When possible, it is advisable both to have the hiring decision-maker also be the termination decision-maker and to make termination decisions without undue delay in order to take advantage of the same actor presumption.