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Fourth Circuit Affirms Age Discrimination Verdict Despite Shaky Evidence of Bias

    Client Alerts
  • June 05, 2019

For employers in North Carolina and South Carolina, perhaps the most important change in their exposure to legal claims from employees has resulted from the appointment of new judges to the Fourth Circuit Court of Appeals who have taken a distinctly different approach toward employment discrimination cases than past decisions indicated. As a result, the Fourth Circuit has flipped from one of the most employer-friendly appellate jurisdictions in the country to one where employees are prevailing on discrimination claims in situations where there appears to be dubious evidence of bias.

This change was demonstrated in a recent 2-1 affirmation of a $335,000 jury verdict in favor of an employee who claimed age bias resulting in her termination from employment. At trial, the employer offered evidence showing that the plaintiff backdated an internal form, and that this was the reason for the termination decision. In response, the plaintiff asserted that (1) she was replaced by a younger employee, (2) she had good performance reviews prior to the incident, (3) that the employer initially told her that the backdating was no big deal, and (4) that on her way out the door, a manager told her to enjoy her time with her grandchildren.      

The employer appealed the verdict, claiming that as a matter of law, this was not adequate evidence of bias. The Fourth Circuit majority acknowledged that the evidence could be interpreted either way but concluded that there was sufficient proof to support the jury verdict. The dissenting judge criticized the use of a stray remark and other collateral evidence as the basis for a verdict in favor of the employee.

This case and others make clear that the Fourth Circuit is deferring to juries to decide employment discrimination cases even in the absence of direct or compelling evidence of bias. With district courts increasingly reluctant to dismiss cases before trial, employers in the Fourth Circuit remain subject to the whims of the jury with little hope for judicial intervention on appeal.