Bernard J. DiMuro, Jonathan R. Mook, and Michael E. Barnsback, Editors
DiMuroGinsberg, P.C.

Vol. 19, No. 8
September 2007

CASE & LEGISLATIVE TRACKER

Standards for establishing discrimination and retaliation

by Jennifer S. Kessler

DiMuroGinsberg presents its monthly "Case & Legislative Tracker," which provides synopses of recent Virginia cases and statutes relevant to today's employment law. This recent case reviews the standards for establishing claims of discrimination in violation of federal law. The court determined that the former employee had failed to establish a claim and, in doing so, provided some useful insights for defending employment lawsuits.

Fourth Circuit reviews elements of discrimination

The Fourth Circuit recently affirmed the dismissal of a female employee's sex discrimination claim. The terminated employee was replaced by a woman and, hence, couldn't show that gender-bias was the reason for her termination.

Kathleen Garrow was training to be a hotel manager. At the time of her training, the general manager was also training another woman to take over her position. After Garrow was terminated, she filed suit against her employer. In assessing the case, the federal district court concluded that she hadn't made even a prima facie (initial) case of discrimination. To do that, an employee must show that (1) she is a member of a protected class, (2) she suffered an adverse employment action, (3) her performance met her employer's legitimate expectations, and (4) the position in question either remained open or was filled by a similarly qualified person outside the protected class. In this case, Garrow was replaced by another woman, which precluded her from proving the fourth element.

On appeal, Garrow argued that she wasn't replaced by the other woman until after she filed her sex discrimination lawsuit. The Fourth Circuit rejected her argument, determining that the woman who eventually replaced Garrow was already being trained before the lawsuit. Even though she wasn't hired until after the lawsuit, she had been identified as the successor and was of the same protected class as Garrow. Thus, there was no prima facie case of gender discrimination.

Bottom line

Intention will be considered by certain courts when looking at a sex discrimination case. In this case, the employer intended to hire a woman to fill a position of a woman who was fired, even before she was fired. Since they were both in the same protected class, the fired woman couldn't legally argue that she was discriminated against for being female.

Copyright 2007 M. Lee Smith Publishers LLC

VIRGINIA EMPLOYMENT LAW LETTER is a monthly publication provided as an educational service only to assist lay persons in recognizing potential problems in their labor and employment matters. It is not meant to be construed as legal advice. Readers in need of legal assistance should retain the services of competent counsel.