McFarland v. The George Washington University, 2007 D.C. App. LEXIS 660 (D.C. Nov. 8, 2007).

This decision, written by Judge Fisher, is ladened with issues worthy of discussion. I will try to touch on the ones that appear most interesting.

The Burden of Proof in So-Called "Reverse Discrimination" Cases

For decades, the courts have grappled with the burden of proof in so-called "reverse discrimination" cases. The Federal Courts in the District of Columbia, long ago, adopted a heightened standard for such cases, requiring the Plaintiff to show "additional background circumstances that support the suspicion that the Defendant is that unusual employer who discriminates against the majority." Mastro v. Potomac Electric Power Co., 447 F.3d 843, 851 (D.C. Cir. 2006)(quoting Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993). See also Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C. Cir. 1981).

The D.C. Court of Appeals has never had occasion to adopt that standard or to reject it. And, in McFarland, the Court leaves for another day whether it will adopt the Circuit's heightened standard. McFarland, an African-American male, claimed gender discrimination, and argued that the Parker/Harding/Mastro heightened standard ought not apply to him in a gender case because he is an African-American.

The McFarland court noted that the Federal District Court for the District of Columbia had applied the heightened standard in cases where an African-American male alleged gender discrimination. In doing so, the McFarland court stated that it was "skeptical" that the heightened standard was intended to apply in a case like McFarland's.

So, we will have to wait for another day as to whether so-called "majority" plaintiffs have a heightened standard of proof in discrimination cases or whether the District of Columbia is prepared to establish a level playing field. The McFarland court, in noting the rationale for the heightened standard when Caucasian bring so-called "reverse discrimination" cases, seems to suggest that in such a case it too would apply the heightened standard rather than a level playing field.

"Intersectional" or "Combination" Discrimination Claims

Over the years, a number of courts have recognized a "distinct protected subgroup", many times African-American females, and have allowed such "intersectional" or "combination" claims to proceed. Many of the cases are collected in McFarland. In McFarland, the Plaintiff, an African-American male, argued that this was not just gender discrimination, this was discrimination against an African-American man. Apparently suggesting that he was a member of a "distinct protected subgroup". As this argument, which would stretch the "intersectional" theory to its outer limits, had first been raised in McFarland's reply brief, the panel declined to reach the issue, noting that it had found no federal case "where the court has squarely held that black men are a distinct subgroup for purposes of applying the anti-discrimination principles of Title VII."

Knowledge of Protected Activity

Faced with the fact that there was no evidence that the individuals in the McFarland case who made the adverse personnel decisions at issue in the case, knew that McFarland had engaged in protected activity, McFarland argued that the Court should impute such knowledge to the institution as a whole. In other words, because others within the corporation knew of his protected activity, the corporation as an entity should be held to have such knowledge for the purposes of a retaliation claim, the so-called "imputed knowledge theory". The Court rejected McFarland's argument, finding that there must be proof that the decisionmakers who took the adverse action knew about his protected activity.

Protected Activity

The McFarland case also presented a question whether a particular letter authored by McFarland constituted protected activity. The Court found that, while the letter raised questions, for example, as to why he was not interviewed for a position, the letter did not allege discrimination or retaliation of any kind. The Court found: "Even if Mr. McFarland's letter is read as signalling a general dissatisfaction with the fact that he was passed over for promotion, it does not clearly complain about unlawful discrimination. Indeed, it is far from clear that the letter is complaining about anything at all." (footnotes omitted).