Thursday, June 10, 2010

Akin Gump and the The Parhat Principle

In a significant rebuff of Pentagon policy on detainees, the U.S. Court of Appeals for the D.C. Circuit ruled that individuals cannot be labeled as enemies of the U.S. based on “bare assertions” not supported by “independent sources” that would make the claims reliable.  Explaining a decision that it had reached on June 20, 2008 but released days later only in a heavily edited form to protect secrets, the Circuit Court was sharply critical of the information contained in a handful of intelligence documents used to justify keeping a Chinese national imprisoned at Guantanamo Bay, Cuba.

Be that as it may.

Different case.  Different area of the law.  Different legal principles.  But the same cause for concern about the reliability of bare assertions of fact concerning the mental status of an employee made by an employer:

In Freedman v. D.C. Department of Human Rights, the D.C. Court of Appeals, applying the D.C. Human Rights Act of 1977, found that an employer's bare assertion (without any independent sources) that an employee was determined to be not mentally fit for employment, following the employer's ex parte consultation with a psychiatric expert, could support the employer's decision to terminate the employee by reason of business necessity: despite the fact that the employee's employment history was exemplary and despite persuasive documentary evidence proffered by the employee that the employer had not, in fact, spoken with a psychiatrist as it had alleged.  Freedman v. D.C. Dept. Human Rights, D.C.C.A. no. 96-CV-961 (Sept. 1, 1998).

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