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Chapter 4 - Proving Disparate Treatment Discrimination

4.120 Inference that decisionmaker will not act against his or her own protected class

6th Circuit

In 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 judgment stage.

7th Circuit

In 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 Johnson v. Zema Systems Corp., 170 F.3d 734, 745 (7th Cir. 1999), and our conclusion there applies with equal force to proof of age discrimination.




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