Legal Memorandum: Employment Discrimination and Protected Class

Issue: Under the case law of the Ninth Circuit, is the absence of members of a protected class among those making an employment decision relevant to the question of pretext in an employment discrimination case?

Area of Law: Employee Law, Litigation & Procedure
Keywords: Employment discrimination claim; Absence of members of a protected class; Evidence of pretext
Jurisdiction: Federal
Cited Cases: None
Cited Statutes: None
Date: 11/01/2005

The fact that all of the interviewers for a given position were not members of the protected class to which an employment discrimination plaintiff belonged is one factor the court may consider in determining whether the defendant’s claim of non-discrimination is pretext for discrimination.  In Bergene v. Salt River Project Agricultural Improvement & Power District, 272 F.3d 1136 (9th Cir. 2001), the court reversed summary judgment on the plaintiff’s retaliation and gender discrimination claims.  The court considered the fact that there were no women supervisors at the workplace, other than in human resources, as evidence of pretext.  Id. at 1143.  The Bergene court thus made clear that evidence that there were no members of the plaintiff’s protected class among those charged with selecting persons to fill the position certainly is evidence the court may consider as evidence of pretext.


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