Washington Law Review


In Proud v. Stone, a 1991 age-related employment discrimination case, the Fourth Circuit established the evidentiary principle that a "strong inference" of nondiscrimination arises when the same person hires and then fires the plaintiff within a short period of time. This "same actor inference" has been adopted in varying degrees by six other circuits. Only the Third Circuit has expressly declined to recognize the hirer-firer relationship as more than evidence from which the trier of fact may draw a reasonable inference. Courts invoking the "inference" have extended its applicability far beyond the original context so as to permit theoretically an inference of nondiscrimination in virtually any set of hire-fire circumstances. In practice, courts have tended to treat hirer-firer identity as evidence subordinate or supplemental to other evidentiary and policy considerations. Nonetheless, mention of the hirer-firer connection almost always accompanies, and in some instances appears to ensure, a pro-employer outcome. This Comment argues that the same actor principle's expansion jeopardizes the efficacy of federal anti-discrimination law. Without clear limitations, the erratic and unthinking application of the "same actor inference" will discourage plaintiffs with valid complaints from coming forward and may permit employers to discriminate without adverse consequences.

First Page