Monday, December 11, 2006
Thanks to Paul Mollica at Daily Developments in EEO Law for pointing out this interesting Title VII case from the Eighth Circuit which came down this past Friday. In Arnold v. Nursing and Rehab. Center, No. 05-4055 (8th Cir. Dec. 8, 2006), the court considered whether an employer's legitimate job expectations should be considered as part of the plaintiff's initial prima facie case or whether it should be considered as part of the larger pretext showing.
Although there has been some disagreements among the circuits on this issue, the consensus view, followed by the Eighth Circuit in Arnold, is that legitimate job expectations should be considered as part of the pretext case:
Arnold argues that the district court erred by requiring her to show that she performed her job satisfactorily instead of merely requiring her to show that she was qualified. We agree. By requiring Arnold to prove that she executed her duties satisfactorily, the district court 'raised the standard set by the Supreme Court for what suffices to show qualification.' Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2nd Cir. 2001), cert. denied, 534 U.S. 951 (2001)."
This view of what is required in the prima facie case seems right to me. The prima facie burden on plaintiff should be very slight given that its purpose is only to eliminate the most common non-discriminatory reasons for the employer's action and merely sets up an easily rebuttable presumption that the employer unlawfully discriminated against the employee.