The Fifth Circuit issues yet another reminder, in today's Title VII decision, that an employer who stoutly refuses to offer any explanation for a decision to deny a promotion takes a strong chance of having to justify its actions at a jury trial.
In a highly unusual development, a panel of the Fifth Circuit reverses itself in an employment discrimination case, in favor of the plaintiff. It had previously affirmed a Rule 50 judgment as a matter of law granted to the employer - a public hospital - in a § 1981 race discrimination case, but in a two-page per curiam order, it announces that it is vacating and remanding the case back for trial.
The Second Circuit becomes the first U.S. Court of Appeals to publish an opinion applying Ricci v. DeStefano, 129 S. Ct. 2658 (2009), to a reverse-discrimination challenge to a Title VII settlement agreement. In a 139-page opinion, including a special concurrence, the panel remands a nine-year-old case to reconsider whether the Justice Department and New York City Board of Education had a "strong basis in evidence" that the Board's tests and recruiting practices violated Title VII.
Courts have applied the McDonnell Douglas burden-shifting method of proof to Title VII, § 1983 and other discrimination cases countless times since its inception in the 1970s. The test classically allows employees who lack direct proof that their employers discriminated against them to raise an inference of discrimination, indirectly, by disproving the other lawful reasons that the employer might have had for its decision. Many courts get this test wrong, but here the Seventh Circuit gets it on the nose and - as a bonus - corrects the district court's application of the "stray remarks" rule and the "same actor" inference.
This author is pleased to announce the return of Daily Developments in EEO Law to its new platform. I will continue to report on the comings-and-goings of federal equal employment opportunity law in this space - concentrating, as before, on developments in the U.S. Courts of Appeals - and will be joined before very long by other, extraordinary attorneys from Outten & Golden LLP, contributing in their areas of expertise.