at what stage in the litigation does a defendant have to articulate a nondiscriminatory reason

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Employers Need to Clear Clear and Reasonably Specific Grounds for Employment-Related Decisions

SUMMARY:
In a recent instance decided by the The states Courtroom of Appeals for the District of Columbia, when the employer'south open-door evidence was limited to a vague reason explaining why it did non promote an employee, the appeals court ruled that the employer failed to meet its brunt of proffering a legitimate and nondiscriminatory explanation for its decision. In Figueroa v. Pompeo, the court explained that it is the employer'due south burden to produce evidence of a articulate and reasonably specific caption for its employment-related decisions then that the employee has a total and fair opportunity to present testify to rebut the employer's explanation.

In a recent employment bigotry case, an employer tried to defend its decision not to promote a particular employee past asserting that the "candidates who were promoted were meliorate qualified than the plaintiff." Withal, the U.s. Court of Appeals for the District of Columbia in Figueroa v. Pompeo held that this type of comparatively substantiated assertion without evidence that demonstrates clear and reasonably specific reasons for the employment conclusion, will not suffice.

In making this decision, the appeals courtroom focused on the second step of the well-established three-step burden shifting epitome used by courts when examining employment discrimination cases based on circumstantial prove of an employer'due south discriminatory intent. The three-step process is as follows:

• Start, the employee must establish a prima facie case, which essentially means that (a) the employee must be a member of a protected class and qualified for the position, (b) the employee was rejected for the position, and (c) the employer selected someone outside of the protected grade for the position.
• Second, if the employee asserts a prima facie case, then the brunt will shift to the employer to clear a legitimate, not-discriminatory reason for its action.
• Third, if the employer meets its brunt of production, then the burden shifts dorsum to the employee, who must prove that the employer's stated reasons are only a pretext for discrimination.

While steps 1 and 3 are the employee's brunt, step ii is the employer's burden. For years, step two was a low burden for employers, who could merely take the position that the rejected employee was less qualified for the position and courts would quickly motility on to the step 3. However, in Figueroa v. Pompeo, the appeals courtroom raised the bar on what is needed to satisfy stride ii. The appeals courtroom explained that in order to satisfy stride ii, the employer must produce evidence of a "articulate and reasonably specific explanation" for its employment decision. While this can be accomplished by using subjective criteria, the employer must present show equally to how it applied these subjective standards to the employee'due south particular circumstances. The appeals court emphasized that without specific reasons as to why other applicants were improve qualified, an employee is denied the opportunity to disprove his/her employer'south assertions.

Moving forward, all employers (especially those in DC) should make certain to accept articulate and reasonably specific non-discriminatory reasons for hiring, firing, and promotion decisions to defend against employment bigotry lawsuits. While the employer is not obligated to share these reasons with the employee at the time of the employment-related decision, a prudent employer should take the necessary documents to support its conclusion if a merits should arise. Vague reasons similar "we hired the best person for the job" or "the applicant did not encounter the requirements," without a more than detailed explanation (and evidence to back information technology upward), will not exist sufficient to satisfy step 2.

This case reinforces the importance of maintaining strong documentation supporting employment-related decisions that include clear articulation of the reasons for the decision. While we suggest that employers use objective factors when making these types of decisions, subjective factors (if not-discriminatory) tin can exist used if the employer can clear a articulate and reasonably specific grounds for the subjective assessment and explain why other candidates were evaluated more than favorably.

If you have any questions regarding your hiring and promotion practices, please contact the employment attorneys at Paley Rothman.

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