The Treatise is based upon federal appellate court decisions from 1996
to 2008. We are currently in the process of updating the Treatise. Until
that update is complete, it is possible that certain cases cited in the
Treatise may no longer represent current law.
4.120 Inference that decisionmaker will not act against
his or her own protected class
Wexler v. White's Fine Furniture, Inc., 317 F.3d
564, 574 (6th Cir. 2003)(en banc), the court explained that the "same-group
inference" is an inference that a decisionmaker will not take a discriminatory
action against his or her own protected class. The court found the district
court erred in relying on this inference:
The district court also invoked the "same-group"
inference in holding that Wexler's direct evidence of discrimination was
inadequate for his claim to survive summary judgment. By emphasizing that
Schiffman was actually older than Wexler when he demoted Wexler, the
district court was relying on the idea that one member of a group is
unlikely to discriminate against another member of the same group. This
inference has been explicitly rejected by the Supreme Court in the context
of race and sex discrimination.
Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 78 (1998) (explaining that "[b]ecause of the many facets of
human motivation, it would be unwise to presume as a matter of law that
human beings of one definable group will not discriminate against other
members of their group") (internal quotation marks omitted). We see no
reason why the same reasoning should not apply to age discrimination cases.
Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 361 (7th Cir. 2001)
(explaining that the Seventh Circuit's "emphatic" rejection in a prior case
of the idea that one member of a protected class is unlikely to discriminate
against another member of the same protected class in race-discrimination
cases "applies with equal force to proof of age discrimination"). Thus, the
district court erred when it invoked the same-group inference at the summary
Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 361
(7th Cir. 2001), the court explained:
The supervisor who riffed the plaintiff was even older
than the plaintiff -- 56 -- and dicta in a number of cases suggest that this
is a factor that should weigh heavily against a finding of age
discrimination. See, e.g.,
Fairchild v. Forma Scientific,
Inc., 147 F.3d 567, 572 (7th Cir. 1998); Mills v. First Federal
Savings & Loan Ass'n, 83 F.3d 833, 842 (7th Cir. 1996); Wexler v.
White's Fine Furniture, Inc., supra, 246 F.3d at 866-67; Brown v. CSC
Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996); Rothmeier v.
Investment Advisers, Inc., 85 F.3d 1328, 1337 (8th Cir. 1996); see
also Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1471 (11th
Cir. 1991); but cf. Rea v. Martin Marietta Corp., 29
F.3d 1450, 1456 (10th Cir. 1994). On reflection, we offer the counterdictum
that the relative ages of the terminating and terminated employee are
relatively unimportant. For it is altogether common and natural for older
people, first, to exempt themselves from what they believe to be the
characteristic decline of energy and ability with age; second, to want to
surround themselves with younger people; third to want to protect their own
jobs by making sure the workforce is not too old, which might, if "ageist"
prejudice is rampant, lead to RIFs of which they themselves might be the
victims; and fourth, to be oblivious to the prejudices they hold, especially
perhaps prejudices against the group to which they belong. We emphatically
rejected the "same-actor inference" in the race-discrimination setting in
v. Zema Systems Corp., 170 F.3d 734, 745 (7th
Cir. 1999), and our conclusion there applies with equal force to proof of