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Qualifications need not ‘jump off page’

What the court held

Case: Ash v. Tyson Foods, Inc., No. 05-379

Issue: Is an employer’s reference to an African-American employee as “boy” evidence of discrimination?

In a case alleging discrimination, where the employer contends another applicant was more qualified, must the plaintiff’s qualifications be so superior that they “jump off the page and slap you in the face” in order to prove that the employer’s reason is pretextual?

Holdings: Yes. Although the term may not always be evidence of racial animus, it does not follow that the term is always benign.

No. The visual image of words jumping off the page to slap you in the face is unhelpful and imprecise as a standard for inferring pretext.

An employer’s stated reason for an allegedly discriminatory hiring decision need not “jump off the page and slap you in the face” to be considered pretextual. The U.S. Supreme Court determined that in its Feb. 21 decision in Ash v. Tyson Foods.

Anthony Ash and John Hithon were superintendents at a poultry plant owned and operated by Tyson Foods, Inc. Ash and Hithon, who are African-American, sought promotions to fill two open shift manager positions, but two white males were selected instead.

Ash and Hithon then sued in federal court in Alabama, alleging race discrimination. At the close of the plaintiffs’ evidence, Tyson moved for judgment as a matter of law pursuant to FRCP 50(a).

The court denied the motion, and the jury found for the plaintiffs, awarding compensatory and punitive damages.

Tyson then renewed its motion for judgment, under FRCP 50(b), and this time, the district court granted the motion. In the alternative, the court ordered a new trial under FRCP 50(c).

Ash and Hithon appealed, and the Eleventh Circuit affirmed as to Ash, but reversed as to Hithon. 129 Fed. Appx. 529 (11th Cir. 2005). However, even as to Hithon, the court affirmed the alternative remedy of a new trial, holding the evidence did not support punitive damages, nor the amount of compensatory damages that the jury awarded.

The Supreme Court granted review, and vacated the decision of the Eleventh Circuit, in a per curiam opinion, for two reasons.

First, the court first noted that there was evidence that Tyson’s plant manager, who made the disputed hiring decisions, had referred on some occasions to each of the employees as “boy.”

The Eleventh Circuit had held this evidence irrelevant, concluding that, “while the use of ‘boy’ when modified by a racial classification like ‘black’ or ‘white’ is evidence of discriminatory intent, the use of ‘boy’ alone is not evidence of discrimination.”

Rejecting this reasoning, the Supreme Court stated, “Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.

Insofar as the Court of Appeals held that modifiers or qualifications are necessary in all instances to render the disputed term probative of bias, the court’s decision is erroneous.”

Second, the Court held that the Eleventh Circuit erred in articulating the standard for determining whether Tyson’s asserted nondiscriminatory reason for its hiring decisions was pretextual.

The employees introduced evidence that their qualifications were superior to those of the two successful applicants.

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Case Analysis

In articulating the applicable standard of review, the Eleventh Circuit stated: “Pretext can be established through comparing qualifications only when ‘the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.’”

Rejecting this standard, the Supreme Court concluded, “The visual image of words jumping off the page to slap you (presumably a court) in the face is unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications.”

After reviewing some of its own articulated standards, and those of a variety of federal circuits, the court declined to explicitly provide the formulation courts should use, stating, “This is not the occasion to define more precisely what standard should govern pretext claims based on superior qualifications. Today’s decision, furthermore, should not be read to hold that petitioners’ evidence necessarily showed pretext. The District Court concluded otherwis
e. It suffices to say here that some formulation other than the test the Court of Appeals articulated in this case would better ensure that trial courts reach consistent results.”

Accordingly, the court vacated the judgment, and remanded the case to the Eleventh Circuit, with instructions to determine whether the two mistakes it identified were essential to its holding.

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David Ziemer can be reached by email.

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