For years, the courts have reasoned that a manager who hires or promotes a minority candidate could not be guilty of bias if he or she later fired the person. Under the “same actor” theory, it was presumed that if a manager hired a minority, he or she was not biased. Thus if the same manager later fired the minority, it was presumed that the firing was not based on prejudice.

A new California case has rejected this theory, which also has been rejected by courts in other states. In Husman v. Toyota Motor Credit Corporation, a director promoted Husman, an openly gay man, to an executive-level management position in the company’s diversity program. The director later made comments Husman perceived as anti-gay. The director observed that Husman made “a very clear statement” about his sexual orientation, stated he should cut his hair, and ridiculed him for wearing a scarf as an accessory when it was not cold outside.

The court held that these comments indicated anti-gay bias, and when the director later fired Husman, it could have been discriminatory.

What this means to you: You may have a great record of hiring and promoting minorities, but that doesn’t mean you get a pass on comments that could be seen as offensive. The occasional comment, even in jest, might not be harassment, but still can be used as evidence of discrimination if the person is fired, demoted, or denied a promotion or pay increase.

Posted 07-18-2017

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.