The U.S. Court of Appeals for the District of Columbia has adopted a set of legal principles to assess a notoriously thorny issue in discrimination law – the role of “qualifications” in hiring and promotions.
Henceforth, the court held, it is no longer sufficient for an employer to defend a charge of discrimination by merely stating it hired the ‘best qualified’ applicant.
Employers must “articulate specific reasons for that applicant’s qualifications such as ‘seniority, length of service in the same position, personal characteristics, general education, technical training, experience in comparable work or any combination’ of such criteria,” the court ruled.
The D.C. circuit adopted a test that was initially enunciated by the U.S. Court of Appeals for the Eleventh Circuit and has also been adopted by federal courts of appeal in the Fifth, Sixth and Seventh circuits. The test is intended to prevent employers from circumventing federal discrimination laws by asserting vague subjective criteria that a plaintiff cannot rebut.
Pro Se Litigant
The ruling came in a case filed by Richard A. Figueroa, formerly a Hispanic foreign service officer, who alleged he was a victim of intentional national-origin discrimination by the U.S. Department of State in Puerto Rico when he was denied promotion, and accompanying pay hikes, from 2001 to 2009.
A lower court judge dismissed Figueroa’s pro se lawsuit after the state department argued “that the candidates who were promoted were better qualified.”
The appeals court reinstated Figueroa’s claim of intentional discrimination claim after finding the state department had failed to offer “clear and reasonably specific” evidence to support its claim that other candidates were more qualified.
The court said subjective standards may constitute a legitimate reason for non-promotion but “we also perceive an intolerable risk that a nefarious employer will use them as a cover for discrimination.” The court noted that Plaintiffs “lack the resources (and the clairvoyance) to guess at how their respective decision-makers interpreted the criteria and to explain away each standard at trial.”
Additionally, the court said it doubted that a “reasonable jury would accept a vague and slippery explanation.”
The appeals court said the State Department set forth a list of promotional criteria – almost all of which was subjective – to justify its failure to promote Figueroa. The department also provided “declarations” from managers stating they followed the criteria in considering Figueroa’s file.
The court examined a case where a white employee was chosen over a black employee who was deemed less qualified. The court said such a decision could be justified if a hiring panel found both equally qualified in several criteria but the white worker had better scores in management, leadership, sales or knowledge of the customer-service process.
The appeal court notes that a Plaintiff in a discrimination lawsuit typically has to rebut an employer’s so-called legitimate non-discriminatory reason for its employment action. The Court said employers must present evidence that is sufficient to provide the employee with a full and fair opportunity for rebuttal.
“When the reason involves subjective criteria, the evidence must provide fair notice as to how the employer applied the standards to the employee’s own circumstances. Failing to provide such detail – that is, offering a vague reason – is the equivalent of offering no reason at all,” the appeals court concluded.
The case is Richard A. Figueroa v. Michael R. Pompeo, Secretary, U.S. Department of State, No. 1: 16-cv-00649 (May 10, 2019).
