WHAT HAPPENED:

Earlier this month the U.S. Court of Appeals for the DC Circuit released an important decision that articulates the substantive burden an employer faces to defend against an allegation of disparate treatment discrimination. The case, Figueroa v. Pompeo, articulates a more stringent view of an employer’s burden in litigation than many courts have applied, and highlights the importance of detailed fact collection, preservation and  record keeping to avoid liability. No. 1:16-cv-649 (D.C. Cir. May 10, 2019).

Disparate treatment discrimination is the allegation that an employer intentionally treated an employee less favorably due to the employee’s race, religion, sex, national origin or other protected status. Of course, proving "intentional" discrimination is particularly difficult because no employer would openly admit to intentionally discriminating against an employee. Therefore for the last fifty years U.S. courts have allowed for employees to utilize a burden-shifting analysis to prove intentional discrimination by way of circumstantial evidence. Often referred to as "the McDonnell Douglas method" after the Supreme Court case in which it originated (411 U.S. 792 (1973)), a plaintiff may prove intentional discrimination by following a three-step process:

1. First, the plaintiff must assert a prima facie case. Meaning, the plaintiff must allege all of the required elements for a legally-recognized act of discrimination.
2. If the plaintiff asserts a prima facie case, then the burden will shift to the employer to "articulate a legitimate, non-discriminatory reason for its action."
3. Last, if the employer provides a satisfactory reason, then the employee must prove that the employer’s stated reason is insufficient, untrue  or was pretext for discrimination.

The DC Circuit’s opinion focused on the second step of the process, finding that rather than merely stating or articulating a legitimate, non-discriminatory reason for its action "an employer at the second prong must proffer admissible evidenceshowing a legitimate, nondiscriminatory, clear, and reasonably specific explanation for its actions." No. 1:16-cv-649 (D.C. Cir. May 10, 2019), slip op. at 22. Notably, the Court found that in order to provide plaintiffs with a fair opportunity to respond, any application of subjective criteria must include a description how of the employer applied to standards to the employee’s circumstances. Id.

The Court found that this heightened standard was in line with decisions reached by other Circuit Courts of Appeals; although some more than others. The Court analyzed that most courts have followed the Eleventh Circuit’s requirement that an employer provide more than vague conclusions of preference of one person over another.

WHAT IT MEANS FOR EMPLOYERS:

It is yet to be seen whether the DC Circuit is correct that its holding conforms with the law in the rest of the country. Nonetheless, this holding affirms the importance of contemporaneous and factually detailed  record keeping, and being able to both explain and back up the explanation as to why one individual was treated differently from another, rather than saying, e.g., "he/she/they were better qualified." In its opinion the Court analogized an employment evaluation to a school grade,  saying if an employer is going to rely on a bad grade (evaluation) to take an adverse action, the employer must also provide a "model answer" (example of model  performance) to compare. Without this showing, an employer cannot defeat a claim of discrimination under the second prong of the McDonnell Douglas analysis, and may be subject to liability if the employee asserts a prima facie claim for discrimination and the employer does not proffer a sufficient non-discriminatory explanation."