The Sophisticated Employer Blog

One of my favorite defenses in employment cases is the “same actor” defense, and I always consider that while I am advising a client faced with a discharge decision.

The defense was first recognized by a plurality of the Michigan Supreme Court in Town v Michigan Bell Tel Co, 455 Mich 688 (1997). Basically, where the same person hired and fired the employee within a relatively short period of time, there is a presumption that there was not an unlawful discriminatory reason behind the discharge.

After all, why would someone hire a person with that protected status if he had an unlawful bias against individuals in that group? But, in Martin v Lisa Langford, DDS, PC, the same actor defense failed. Let’s look at why the Michigan Court of Appeals rejected the defense and reinstated the discrimination claim.

Amiyrah Martin was hired by Dr. Langford on Sept. 9, 2013 as a dental assistant. During the face-to-face interview, Martin wore a hijab. Less than three months later, Dr. Langford terminated Martin’s employment. When Martin asked why she was being fired, Dr. Langford stated that Martin “did not culturally fit in the environment of the office” and that she was “unsympathetic, that maybe this was due to her religion, because ‘Islam is unsympathetic.’” Ouch!  Despite this testimony, the trial court dismissed the case. On appeal, the case was reinstated.

There are two primary ways of proving discrimination claims: direct and indirect (or circumstantial) evidence. “Direct evidence ‘is evidence that proves impermissible discriminatory bias without additional inference or presumption.’” A stray or isolated comment is not direct evidence of discrimination.

To determine if the comment is simply a stray remark, the court considers whether the comment was: (1) made by the decision maker (or someone not involved in the employment decision), (2) isolated or part of a pattern of biased comments, (3) close or remote in time to the disputed employment decision, and (4) ambiguous or clearly reflective of bias.

In this case, the comments were made by the decision maker, during the discharge meeting and “were clearly reflective of a discriminatory bias.” Therefore, the comments were direct evidence of discrimination.

On appeal, Martin challenged, among other things, the trial court’s reliance on the “same actor” defense in dismissing the case. While Dr. Langford failed to address this argument on appeal, the appellate court noted that, since only a plurality of the Michigan Supreme Court adopted the defense in Town, it was not bound to apply it. In addition, Michigan courts are permitted to look to federal decisions for guidance and the U.S. Court of Appeals for the Sixth Circuit has recognized that “the same-actor inference has never been applied in cases of direct evidence of stereotyping.”

Well … burst my bubble.  At least since this decision is unpublished it’s not binding on future decisions.

Before an employer makes a discharge decision, it is always wise to consult with experienced employment counsel, such as the author.  The employer may be advised that the decision lacks factual or documentary support or that the decision should be reviewed and approved by a different decision maker. But, once the termination has occurred, an attorney can only defend the decision as is.