Today, the Ninth Circuit Court of Appeals found that evidence of favoritism coupled with credibility issues surrounding an employer’s non-discriminatory reasons for an adverse employment decision was enough to create a triable issue of fact regarding discrimination, Noyes v. Kelly Services, No. 04-17050.
Asserting disparate treatment in violation of Title VII, Noyes claimed that her supervisor, a member of a small religious group, denied her a promotion, instead choosing an employee who was also a member of his religious group. Noyes presented evidence that the supervisor told other employees that Noyes was not interested in the promotion, even though she had applied for the position. She also presented evidence that her supervisor routinely favored employees who belonged to his religion.
The Court first found that Noyes was part of a “protected class” because she did not adhere to the religious beliefs “promoted by the management [.]” Once she demonstrated the basic elements of her claim, the burden passed to her employer to show non-discriminatory reasons for the promotion. Even though the employer met that burden, the Ninth Circuit held that Noyes’ specific evidence regarding favoritism and undermining the credibility of the employer’s non-discriminatory reasons created a triable issue of fact. The Court explained that the trial court had erroneously found Noyes’ evidence inadequate, because the trial court held her to the higher standard of proof needed to prevail at trial, rather than the lesser burden of showing that there is a factual issue for a jury to decide. The Court emphasized that plaintiff’s burden is “hardly an onerous one.”
The Court’s decision may make it easier for an employee to survive a motion for pre-trial dismissal even where the employee’s evidence of pretext is circumstantial. The decision suggests that evidence undermining the employer’s credibility along with some other minimal evidence is enough for a trial. Employers should also be aware that an employee’s non-membership in a particular religion can serve as the basis for a discrimination claim, in addition to the more traditional claim where an employee claims disparate treatment because of his/her specific religious affiliation.
Keesal, Young & Logan Employment Group
www.kyl.com
