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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. If someone is fired and replaced by another person of the same race or sex, would a discrimination lawsuit filed by the terminated employee have a leg to stand on in court?

A. An employer’s decision to replace a terminated black or female employee with a white or male employee may raise an inference of race or sex discrimination. This inference usually will not be drawn when an employer replaces a black or female employee with someone of the same protected class. However, under certain circumstances, the opposite may be true.

Usually, for a discrimination lawsuit to avoid dismissal, courts will require an employee in a protected class (e.g., black or female) to show that she “was performing her job duties at a level that met her employer’s legitimate expectations at the time of the adverse employment action” and “the position remained open or was filled by similarly qualified applicants outside the protected class,” the 4th U.S. Circuit Court of Appeals said in Lettieri v. Equant Inc. (2007).

However, the 4th Circuit has created a so-called “different decision-maker exception” to this outside-the-protected-class requirement. When the person who fired the employee does not hire the replacement employee, there is “no probative value whatsoever as to whether the first individual’s firing decision was motivated by the plaintiff’s protected status,” the court said in Lettieri.

In such situations, “the replacement hiring decision would not have contributed to a presumption of gender discrimination on the part of the first decision-maker, who fired the plaintiff.” The 4th Circuit identified another exception to the outside-the-protected-class requirement that applies to cases where a defendant employer hired someone within the plaintiff employee’s protected class “to disguise its own act of discrimination toward the plaintiff.”

Employees who believe they have been subjected to unlawful discrimination should immediately contact an employment law attorney. If the employer replaced you with someone of the same protected class, an attorney could help show the same person was not behind the hiring and firing actions or that the hiring of someone of the same protected class was a ruse meant to conceal a discriminatory firing.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit 

 The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of


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