KCNF Attorney Steve Pershing Contributes to Amicus Brief in Federal Employee’s Successful DCHRA Lawsuit

On January 4, 2024, the District of Columbia Court of Appeals upheld a $633,260 jury verdict in favor of Tyrone Bryant, a former D.C. government employee who alleged he was fired in 2014 in retaliation for supporting a co-worker’s sexual harassment lawsuit.

KCNF attorney Steve Pershing took the lead on the Metropolitan Washington Employment Lawyers Association (“MWELA”) amicus brief in the case. That brief addressed the most significant legal issue before the court: the standard for retaliation claims under the D.C. Human Rights Act (“DCHRA”). The Court had to decide whether Mr. Bryant’s retaliation claim should succeed based on the proof he gave that retribution for his support of the co-worker was one “motivating reason” for his firing—which would be enough for a DCHRA claim of discriminatory treatment, and should be no different for retaliation—or whether, as the District insisted on appeal, he had to come up with proof that his civil rights activity was the “but-for” cause of the firing, meaning that if not for that activity his employer would have kept him. That “but-for” causation standard is the one the U.S. Supreme Court read into Title VII of the 1964 Civil Rights Act for retaliation cases in a 2013 case called Nasser. That decision itself is controversial (it was decided 5 to 4, and the dissent by Justice Ruth Bader Ginsburg said it “defies logic”), but the language of the D.C. Human Rights Act is more permissive than Title VII, and the D.C. Court of Appeals recognized – as Mr. Bryant and MWELA argued ­– that it did not have to, and should not, follow Nasser in applying the D.C. statute.

The decision was a huge victory for Mr. Bryant, but the D.C. Court of Appeals is so backlogged, and the wait for a ruling was so long (almost four years after oral argument), that Bryant died before the opinion was issued, and the suit is being maintained by his widow. And the case is still not over: the District has indicated it intends to ask the full D.C. Court of Appeals to overrule the panel decision. MWELA will be following the case closely, looking for an opportunity to clarify or defend the panel majority’s  decision on this important legal issue.

The case is Bryant v. District of Columbia. Click here to read the full panel opinion, and click here to read the MWELA amicus brief.