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When the same person who hires the employee fires the employee, the employer can raise the “same actor defense.”

There is a legal principle known as the “same actor”defense. Employers use this theory to rebut claims of illegal conduct like discrimination.   If the same person who hired the employee fired the employee, there is a rebuttable inference that the hiring person did not discriminate.  The theory is that if the hiring person is a bigot, he would not have hired the employee in the first place.  It is more difficult to prove discrimination if the “same actor” who hired the employee fires the employee within a short period of time.  

The same actor defense is a rebuttable inference that employees can overcome if there is direct or circumstantial evidence of disparate treatment. E.g,, a longer gap in time between hiring and firing accompanied by examples of discriminatory comments or treatment, or more favorable treatment of other employees who are not in the same protected group.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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