Courts are fond of logic. For example, they’ll typically consider it unlikely that a manager would hire someone knowing they belonged to a protected category (age, race, religion, etc.) and then later fire that same employee because of that same characteristic. It just wouldn’t make sense.

That’s why it’s usually wise to have the same manager who hired the employee be the one who conducts the termination. That’s not always possible due to promotions and departures, but it can be a big factor in defeating a discrimination lawsuit.

If the manager has moved on, all is not lost. You can still argue the worker was hired knowing his status and it makes no sense to then have fired him for that characteristic.

Recent case: Carmen, a Protestant minister, was hired as a chaplain at a Veterans Affairs hospital. She was terminated for poor performance, but sued, citing religious discrimination. The same two managers who hired her were the ones who made the firing decision.

The court dismissed the lawsuit, saying it’s not reasonable to believe that the managers who knew about her faith at the hiring would fire her because of her faith three months later. (Blair v. Shulkin, 9th Cir.)

Final note: Realize that the same-actor defense won’t work if the employee’s protected characteristic was hidden (such as a disability) during the hiring process.

Source: HR Specialist June 2017 I Nancy Delogu, Esq.