D.C. Circuit Emphasizes Need for Specific Evidence to Support Legitimate Nondiscriminatory Reasons


The U.S. Court of Appeals for the D.C. Circuit recently explained the burden on employers to provide sufficiently specific evidence to support their legitimate nondiscriminatory reasons for adverse employment actions in the context of a discrimination claim.

The Court’s Ruling: When addressing a claim of discrimination under federal antidiscrimination laws that rely on circumstantial (rather than direct) evidence, a court uses the McDonnell Douglas framework, which sets forth a three step burden-shifting analysis: (1) the employee must establish a prima facie case of discrimination (i.e. that the employee has been treated differently than other employees of a different protected characteristic for engaging in the same conduct); (2) if the prima facie showing has been made, the employer must then articulate a legitimate non-discriminatory reason for its action; and (3) if the employer meets this burden, the employee must then show that the articulated reason is actually a pretext for discrimination.

In Figueroa v. Pompeo, the D.C. Circuit addressed what the employer must show in order to meet its burden, noting that “[a]n employer cannot satisfy its burden of production with insufficiently substantiated assertions.” In order to make an “adequate” showing, the D.C. Circuit noted that there are numerous factors, but the following four are paramount in most cases: (1) the employer must produce evidence that a factfinder may consider at trial or in a summary judgment proceeding; (2) if the factfinder believes the evidence, it must reasonably be able to find that the employer’s action was motivated by a nondiscriminatory reason; (3) the nondiscriminatory reason must be legitimate (i.e. “credible” in light of the proffered evidence); and (4) the evidence must present a “clear and reasonably specific explanation.” Ultimately, according to the D.C. Circuit:

the employer “must proffer admissible evidence showing a legitimate, nondiscriminatory, clear, and reasonably specific explanation for its actions. The evidence must suffice to raise a triable issue of fact as to intentional discrimination and 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.

In the context of this particular case, the D.C. Circuit noted that it was not sufficient for the employer to simply state that it hired the best qualified applicant. Rather, the employer has to articulate the specific reasons for the applicant’s qualifications, such as seniority, length of service in the same position, personal characteristics, general education, technical training, experience in comparable work, etc. The D.C. Circuit observed that this approach is consistent with that of a number of sister Circuits, including the Eleventh, Fifth, Sixth and Seventh.

Lessons for Employers: This case emphasizes the need for employers to have clear, specific, and demonstrable reasons for employment decisions. Even though the employer does not have a burden of proof in discrimination cases (which remains at all times on the plaintiff) the employer does have to have evidence to support the reasons that it advances to rebut the plaintiff’s claims.  Unsubstantiated, vague or conclusory assertions will not suffice.