The entire panel agreed that the unwelcome overtures and outright requests for sexual conduct amounted to sexual harassment.  The concurring opinion discussed the ambiguity of the evidence that tied her job to her acceptance of the sexual advances.  It also gave more credit to the City’s claim that the plaintiff was scheduled to be fired even before she complained to the Mayor.  The important point, however, is that the jury should be able to decide whether the reasons for her termination were pretexts, given to cover up the discriminatory conduct.

It is still difficult for plaintiffs to get to trial in employment discrimination cases.  But the Fourth Circuit has changed over the last few years, and this decision may be a harbinger of fewer cases decided without a trial.

The Court further refused to engage in a factual inquiry whether the errors the hospital said the employee made were really made.  The hospital “is not required to conclusively substantiate her poor performance, only that it reasonably believed her performance to be deserving of discipline.”

We often see employers papering the files of employees before terminating them.  This is good practice, it forces employers to deliberate over their decisions, and ideally precludes discriminatory decisions on demotions, discipline and termination.  On the flip side, it provides a safety hatch for biased supervisors.  All they have to do is write up the employee for infractions, real or imagined, and they insulate themselves from charges of bias, as federal courts routinely shrink from investigating too deeply.  With the recent Supreme Court decision on the “cat’s paw,” there is still an avenue to investigate the bias of the person providing the write-ups, but it is not enough to show that the allegations were untrue.

The Fourth Circuit held that once the company did get involved, its response was acceptable.  While the best outcome, of course, is for all of the harassment to stop, when an employer promptly investigates and takes steps designed to stop the racially charged behavior, it is insulated from a lawsuit.  Here, though, the company took too long to respond to the first complaints, and will have to go to trial.

While this reversal permitting a trial is a welcome departure from the Fourth Circuit’s usual affirming of summary judgment, there is some troublesome language in the decision.  Several racial epithets are referred to as “isolated” remarks, code for “we are not going to worry about a little bit of discrimination, just a lot.”  Yet another employee’s testimony was discounted for being too general.  The court faulted him for not having detail, context, examples, and time frames.

Merritt was a line haul driver for six years, taking freight to distant states.  She wished to transfer to a local driving job so she could spend more time at home.  The job is more physically demanding, since the driver does the loading and unloading of the freight.  Its hours are more regular, though, and so some employees find it more desirable.

Only six out of the 3,100 local drivers at this company were female.  Merritt also produced evidence that her supervisor said that “a girl should not have that position,” in part because the company was afraid women would be hurt on the job.  Still, after several applications, and after making sure the men at the terminal did not mind working with a woman, Old Dominion placed her in the job.  She did well.  Six months later Merritt hurt her ankle and had to take some time to recover.  When she was ready to return, she was put through a full-blown fitness test that is only given, occasionally, to new hires.  She failed the test, but for reasons unrelated to her ankle injury and unrelated to her ability to perform the work.  (For example, she was too short to reach a shelf.)  The company fired her and replaced her with male workers.

In reversing the dismissal, the Fourth Circuit considered the pretextual policy of requiring injured workers (only on rare occasions) to take this test, and the statements by Merritt’s boss.  It stated, “A plaintiff does not need a ‘smoking gun’ to prove invidious intent, and few plaintiffs will have one.”  In this case, “evidence of a good employee record combines with evidence of an impermissible company attitude to form a lethal concoction.”  In his concurrence, Judge Davis emphasized that company tests must be applied in a neutral manner.

Judge Keenan is the first woman jurist from Virginia to serve on the Fourth Circuit

This opens a seat on the United States District Court for the District of Maryland.  The Senate has a lot of nominations before anyone will even be placed for a vote for this seat.  The scuttlebutt around Baltimore is that many very well-qualified jurists will apply for the seat, and probably some practitioners as well.

Well, at least President Obama is doing his part.  Yesterday he nominated two North Carolina judges to the Fourth Circuit.  President Clinton had earlier tapped Judge James Wynn Jr. of the North Carolina Court of Appeals; Judge Davis had the same experience of having his nomination die after a Republican took the White House.  Judge Wynn is also African-American.  The Fourth Circuit’s geographical region has a high population of African-Americans, so adding to the diversity of the Court would be fair and add to its perceived legitimacy.  The other nominee, Judge Albert Diaz, is Hispanic.  There are no current Hispanic members of the Court.  More to the point for my clients, Judge Diaz has been working as a special trial judge for complex business cases.  Often judges are chosen from the ranks of former prosecutors, and therefore their civil experience is meager.