February 1999

Workplace Labor Update - D.C. Circuit Announces Loose Standard for Proof of Bias – February 1999

4 min

Since the Supreme Court's 1993 decision in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the federal courts of appeals have differed on whether an employment discrimination plaintiff can reach a jury if he can call into question the employer's stated reason for the allegedly discriminatory employment decision. Most recently, the full federal Court of Appeals for the District of Columbia Circuit decided by a vote of 7 to 4 that such a plaintiff will not routinely be required to submit evidence in addition to that which rebuts the employer's given explanation for its conduct. Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc).

The plaintiff Aka, a 56-year-old Nigerian born man, worked as an operating room orderly for the defendant Washington Hospital Center. His job required frequent lifting and pushing of heavy items. After 19 years of work at WHC, Aka underwent surgery for heart and circulatory difficulties. Approximately six months later, Aka's doctor cleared him to return to work in a position that involved no more than a “light or moderate level of exertion.” Because his orderly job did not meet this criterion, he asked to be transferred to another position. WHC declined the request, instructing Aka instead to apply for vacant jobs according to the hospital's job posting procedure. Aka applied for several positions, but obtained none. Ultimately, Aka filed a lawsuit claiming, among other things, that WHC unlawfully discriminated against him on the basis of his disability and his age by denying him certain open positions, including one as a pharmacy technician. In defense of its hiring decisions, WHC claimed that it did not select Aka because another applicant was better qualified. Aka attacked this explanation, presenting evidence showing that he (Aka) was the more qualified candidate.

The court analyzed the issue with reference to the familiar framework established by the U.S. Supreme Court, whereby a plaintiff first must establish a prima facie case of discrimination. Having done so, the burden shifts to the employer to state a legitimate, nondiscriminatory reason for the challenged employment decision. Should the employer present such a reason, the burden reverts to the plaintiff to demonstrate that the employer's reason was not the true reason for the employment decision and that discrimination was. In particular, the Supreme Court in its 1993 Hicks decision stated that “disbelief of the reasons put forward by the defendant . . . may, together with the elements of the prima facie case, suffice to show intentional discrimination.”

The D.C. Circuit interpreted this passage to mean that, although evidence presented by an employee which tends to rebut the employer's explanation will not always suffice to permit an inference of discrimination, neither is an employee presumptively required to submit evidence over and above such a rebuttal in order for his or her case to reach a jury. The court added that proof that the employer's explanation for its actions is false, even if not expressly shown to be discriminatory, will be strong evidence of a discriminatory motive. Applying this reasoning to the case before it, the court held that Aka had presented enough evidence to permit a jury to conclude that he was considerably more qualified than the individual who was given the job, thus casting doubt on the employer's reason for its decision. Accordingly, the court remanded the case to the trial court to hold a trial on the discrimination claim.

This case contrasts starkly with the decision of the federal Court of Appeals for the Fourth Circuit in Vaughan v. MetraHealth Co., 145 F.3d 197 (4th Cir. 1998) (discussed in July 1998 WLU), in which that court held that raising a question of fact regarding the truthfulness of the employer's explanation for its employment decision is not sufficient to get to a jury. Rather, in Vaughan, the court held that it is an employee's burden to show not only that the employer's reason was false, but that discrimination was the actual reason. The D.C. Circuit's decision in Aka signals continued dissention over how much evidence of discrimination a plaintiff must produce to be permitted to bring his or her case before a jury, and underscores the degree to which the outcome of a discrimination case depends upon how the court resolves this issue.