Third Circuit Narrows the Reach of PHRA’s “Best Able and Most Competent” Clause and Raises the Bar for Certified Questions

Introduction

The decision in Pamela Kern v. DAS Companies Inc. (3d Cir. No. 24-2420, filed 31 July 2025) tackles two perennial issues in employment discrimination litigation:

Whether the Pennsylvania Human Relations Act (“PHRA”) imposes a liability standard different from the federal Age Discrimination in Employment Act (“ADEA”) in age-bias cases; and
Whether the PHRA’s unique phrase—“best able and most competent”—heightens an employer’s burden of proof in disparate-treatment suits.

Appellant Pamela Kern, a 59-year-old former “Content Coordinator,” argued that:

Age need only be a “motivating factor” (not a “but-for” cause) under the PHRA; and
The “best able and most competent” language obliges employers to prove that the person selected was objectively superior.

She sought certification of these questions to the Pennsylvania Supreme Court, receiving amicus support from the Pennsylvania Human Relations Commission (“PHRC”). The Third Circuit rejected both requests, affirmed summary judgment for DAS, and clarified important doctrinal boundaries.

Summary of the Judgment

Certification Denied: The panel (Porter, J.) held that certification is inappropriate when the answer will not change the outcome. Even under Kern’s preferred “motivating-factor” test, her proof was insufficient.
PHRA Standard: Predicting Pennsylvania law, the court found no basis to impose a heavier employer burden via the “best able and most competent” clause in disparate-treatment cases.
Summary Judgment Affirmed:
- Discrimination (ADEA & PHRA): Kern failed to raise a triable issue of pretext regarding both her lay-off and non-rehire.
- Retaliation: She could not show causation between her administrative charge and DAS’s refusal to interview her.
- Timeliness: The termination component of the PHRA claim was time-barred (182 days instead of 180).

Analysis

1. Precedents Cited

Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) – Anchored the ADEA in “but-for” causation, distinguishing it from Title VII mixed-motive liability.
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) – Pre-1991 plurality that inspired “motivating-factor” language later codified in Title VII.
Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005) and progeny – Habitually equated PHRA standards with federal analogues absent textual differences.
Spanish Council of York, 879 A.2d 391 (Pa. Commw. Ct. 2005) – Allowed a “motivating-factor” theory in a race case; distinguished here.
Winn v. Trans World Airlines, 484 A.2d 392 (Pa. 1984) – Equally divided Pennsylvania Supreme Court on whether “best able and most competent” heightens a plaintiff’s prima-facie burden.
Allegheny Housing Rehabilitation Corp., 532 A.2d 315 (Pa. 1987) – Noted “considerable confusion” surrounding that clause.
Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) – Articulated the evidentiary burden for showing pretext.
Willis v. UPMC Children’s Hospital, 808 F.3d 638 (3d Cir. 2015) – Reaffirmed McDonnell-Douglas framework for age claims.

2. Legal Reasoning

a. Certification Doctrine

Under 3d Cir. I.O.P. 5.1 and Local App. R. 110.1, certification to a state high court is discretionary and appropriate only if the state-law question is decisive and unsettled. The panel held:

“Certification is only appropriate where it will control the outcome of a case.”

Because Kern’s evidence failed even under her own preferred standard, the question’s answer would not alter the judgment—hence certification was denied.

b. PHRA Liability Standard

The court acknowledged linguistic differences between § 955(a) and the ADEA but predicted the Pennsylvania Supreme Court would not:

Adopt a motivating-factor test for age claims; nor
Shift the burden of persuasion to employers based on “best able and most competent.”

This prediction relied on: (i) the lack of binding Pennsylvania precedent; (ii) Winn’s equally divided result; (iii) deference to—but not control by—the PHRC; and (iv) federal analogues indicating a cautious approach to expanding mixed-motive liability.

c. Application of McDonnell-Douglas

Prima facie case: DAS conceded it.
Legitimate reason: Pandemic-driven cost savings with minimal operational disruption.
Pretext: Kern’s evidence (lay-off matrix, younger comparators, internal confusion, later hiring) did not show “weaknesses, inconsistencies, or contradictions” under Fuentes. Notably:
- “Antiquated system” remark referred to software, not age.
- Potential replacement candidates were never actually hired; ultimate hire was 39 yrs old after 14 months of temporary work.
- Decision-makers’ lack of technical knowledge was not probative of discriminatory intent.

d. Retaliation Analysis

Even assuming protected activity (notice letter, EEOC/PHRC charge), Kern lacked evidence of causation:

Temporal gap (10 days) not “unusually suggestive.”
Derogatory internal email (“She is not giving up!”) merely reflected repetitive applications, not retaliatory animus.
Pattern of non-selection both before and after the charge weakened any inference (Shaner).

3. Impact of the Decision

PHRA Uniformity Restored: The court’s prediction disfavours divergent standards between the PHRA and ADEA, promoting predictable litigation strategies in Pennsylvania federal and state courts.
Employer Burden Clarified: Employers need not prove that the chosen candidate was “best able and most competent” in disparate-treatment suits; they must only articulate a legitimate, non-discriminatory reason.
Certification Gatekeeping: By underscoring outcome-determinative necessity, the panel signalled a restrictive approach to certifying questions—especially when federal courts can resolve cases on existing records.
Strategic Litigation Guidance: Plaintiffs must marshal robust evidence of pretext even where they contest the governing liability standard; courts may bypass novel state-law issues if the factual record is weak.
COVID-19 Reduction-in-Force (RIF) Cases: The opinion reaffirms judicial reluctance to second-guess pandemic-era RIF decisions absent compelling discriminatory proof.

Complex Concepts Simplified

ADEA (Age Discrimination in Employment Act): Federal statute protecting workers aged 40+ from discrimination; requires “but-for” causation after Gross.
PHRA (Pennsylvania Human Relations Act): State analogue covering additional protected classes; text includes “best able and most competent” clause that historically caused interpretive debate.
“Motivating-factor” vs. “But-for”: Motivating-factor = Protected trait need only be one of several reasons; But-for = Trait must be the decisive reason (“tip the scales”).
Certification of Questions: A federal appellate court may formally ask a state supreme court to resolve unsettled state-law questions. Certification is discretionary and usually employed when the answer is pivotal to the case’s outcome.
McDonnell-Douglas Burden-Shifting: Three-step analytical framework: (1) Plaintiff prima facie case; (2) Employer’s legitimate reason; (3) Plaintiff’s proof of pretext.
Pretext: Evidence showing that the employer’s stated reason is a cover for discrimination—must reveal inconsistencies or discriminatory motive.

Conclusion

Kern v. DAS Companies cements two practical guideposts for litigants and courts alike:

The PHRA’s textual quirks do not presently expand employer liability beyond federal standards in disparate-treatment age cases.
Certification will be denied where the factual record is dispositive, even amid genuine doctrinal uncertainty.

By aligning PHRA age-bias claims with Gross’s “but-for” causation (absent contrary Pennsylvania authority) and rejecting an inflated employer burden, the Third Circuit promotes uniformity and predictability. Plaintiffs must assemble solid evidence of pretext and causation—technical arguments about statutory wording will not rescue a thin record. Conversely, employers may rely on well-documented RIF rationales and consistent decision-making processes, but should remain vigilant: the opinion does not foreclose the Pennsylvania Supreme Court from adopting different interpretations in the future. Still, unless and until that happens, Kern stands as the most detailed federal appellate roadmap on these PHRA ambiguities.