The D.C. Circuit holds that even facially benign statements about an employee - in a given context - can constitute evidence of discriminatory intent. The panel finds that a supervisor's alleged compliment to a Black employee for "speaking well," and later telling the same employee that he was not a "good fit" for the organization, might be evidence of racial stigmatizing. It also discusses that an employer's "honest belief" must also be reasonable under the circumstances.
The dubitante judicial opinion affirms a result, but casts suspicion on the underlying law or basic fairness of the decision. Two recent, split Title VII opinions fall into this category. The Seventh Circuit declined to overrule its decades' old precedent holding that Title VII does not cover sexual-orientation discrimination, and the D.C. Circuit applied its case law that denials of lateral transfers are generally not "adverse employment actions." Yet both opinions sow the seeds for future challenges to these questionable and unfair outcomes.
The D.C. Circuit, in a Title VII race-discrimination case, hands down a mixed decision for an Environmental Protection Agency (EPA) employee. It reverses summary judgment on her challenge of a suspension, holding that she was entitled to a trial where There was evidence that the lower-level decision maker who prompted the action made racially-biased remarks, especially one directed at the plaintiff. Yet it affirms dismissal of her termination claim, concluding that the plaintiff failed to exhaust the exacting administrative requirements that apply to federal-sector workers.
In two recent federal-sector race discrimination decisions, the D.C. Circuit - while ruling in the employer-agency's favor - issued opinions that may be even more useful for employees in future cases. Both opinions criticized short-cuts sometimes used by district courts to improperly weigh summary judgment records.
The D.C. Circuit addresses an all-too-common scenario where the employer - without apparent explanation - arguably comes down hardest on the Black employee rule-breaker. The court reverses summary judgment in a case involving nurses, where the Black nurse was allegedly singled out and fired for violations of protocol during a single shift.
In the past eighteen months, there have been favorable decisions from the Second and Sixth Circuits about unconventional work scheduling as a reasonable accommodation. The D.C. Circuit joins those courts with a new Rehabilitation Act decision holding that the Department of Agriculture should have considered a flextime schedule for an employee under treatment for depression.
Courts sometimes get confused about who, in our American system of civil justice, gets to decide whether an adverse employment decision was taken because of the employee's age. That decision belongs to a jury. So even if the employer might have had a very good and non-discriminatory reason for eliminating a position, when the principal decision maker also tells the terminated employee that "you didn't come here to work, you came here to retire," it is the jury - not the judge - that is allowed to decide whether it's age discrimination.
The D.C. Circuit remands a federal-sector race discrimination case for trial, where a jury will decide whether the agency's (alleged) inability to keep its story straight about the process it used to interview candidates - and then supposedly cancel a new GS-14 position - demonstrates racial bias.
Here's a very important reminder that even a single verbal incident of racial harassment can constitute a hostile work environment, especially if it involves one of the most inflammatory words in the American English idiom. The D.C. Circuit, in a pro se appeal, reverses summary judgment on § 1981 harassment, retaliation and discrimination claims by an African-American Fannie Mae employee, finding a single use of the n-word sufficiently severe to present a triable issue of fact.
An important part of the Employee Retirement Income Security Act of 1974 was reforming the practice of "backloading" pensions - in other words, having the lion's share of contributions come at the end of the employee's career, resulting in smaller retirement payouts. This D.C. Circuit decision, affirming a ruling that the Hilton Hotel pension plan violated the anti-backloading rule, furnishes an important lesson to all persons enrolled in such "defined benefit" plan: keep an eye on your benefit statements.