A new case out of the Second Circuit answers a question that has perplexed employers: How can an employer defend itself from an employment discrimination claim when the person who made the decision becomes “unavailable?” 

(“Unavailable” can take many meanings such as, the witness is out of the country, but in many cases it means the witness is now deceased.)

The answer, according to the court, is that the employer can use circumstantial evidence to establish its legitimate non-discriminatory reason for the decision — such as by using a folder of resumes that the decisionmaker reviewed in making the decision not to hire an applicant. 

Both the Daily Developments in EEO Law Blog and the Employer’s Law Blog, do a good job recapping the case so I won’t repeat it here.  The case, Bucalo v. Shelter Island Union Free Sch. Dist., can be downloaded here.

Suffice to say, however, that this case is going to be the exception to the normal rule that it’s best to have a decisionmaker testify to the events at issue. 

The Second Circuit recognized, however, that there are “rare cases” where “an employer will be unable, through no fault of its own to articulate clearly and specifically its legitimate reasons for an employment actions.”

What’s the takeaway for employers? Preservation of a key witnesses’ testimony will still be best. But when that is not an option due to, for example, an untimely death of a witness, you can still use this as “Plan B.”