The Fourth Circuit Court of Appeals (federal court) covers the Carolinas, Virginia, Maryland and West Virginia.  The Fourth Circuit and the Fifth Circuit (Texas, Louisiana and Mississiippi) are the two most conservative courts of appeals in the country.  So, it is news when the Fourtth Circuit overturns summary judgment in favor of the employer.  In this sex harassment case, the Fourth Ciorcuit found in favor of the plaintiff in Merritt v. Old Dominion Freight.  

The Court correctly noted that evidence of the falsity of the employer’s explanation alone is sufficient to show discriminatory animus.  That is, evidence that the story was false suffices to show the employer was motivated by discrimination.  The case should go to the jury.  The jury should review that evidence of the employer’s story and determine whether they believe that evidence shows discrimination.  

Key evidence included a PAT, a physical ability test, which the employer required Ms. Merritt to take before allowing her to return to work.  Evidence showed that few if any males had been required to take the PAT when they sought to return to work.  The employer could not produce any written policy showing when it even was supposed to require the test.  I think what caught the court’s attention was the employer’s argument regarding this policy evolved over time during the litigation and the appeal.  "It was only late in the game, on appeal and perhaps not until oral argument before this court, that the policy really took shape."  Slip opinion, at p. 15.  That is a polite way of saying that the employer did not pull this argument out until the appeal.  

It is never a good thing when a judge notes that a key claim or argument only took final shape on appeal.  That is judge-talk for this defense appears to be less than sincere.  And, the court is right that such lack of sincerity is for the jury to assess, not judges.