Calling an Employee
"Boy" Can Be Racial Discrimination
The
United States Supreme Court recently ruled that white managers could be
sued for calling a black employee "boy." In a short but unanimous
decision, the court overturned a federal appellate court that had ruled
that the term "boy" alone was not evidence of workplace
discrimination.
This
is one of the first decisions of newly appointed Justice Samuel Alioto.
The
Supreme Court took to task the 11th Circuit for: (1) holding on to the
"stray remarks" doctrine and (2) ruling that comparative
qualifications between a plaintiff and the person actually hired or
promoted cannot support a finding of pretext unless "the disparity in
qualifications is so apparent as virtually to jump off the page and slap
you in the face."
The
case was brought by Anthony Ash and John Hithon
who were superintendents at a poultry plant owned and operated by Tyson,
Inc. Ash had 15 years of experience with the company and Hithon had 13 years. Ash and Hithon
sought promotions to fill open shift manager positions, but white males
were selected instead. One of these white males selected had less than two
years experience.
Ash
and Hithon sued under Title VII and 42 U.S.C. §
1981 alleging race discrimination.
The
case went to trial in the U.S. District Court in the Northern District of
Alabama. Evidence at trial showed that the plant manager who made the
promotion decision had referred to each of the plaintiffs as
"boy" on some occasions.
The
jury found race discrimination and ordered compensatory and punitive
damages to the tune of $1.75 million each. However, upon a post-trial
motion, the district court ordered a new trial.
On
appeal to the 11th Circuit, the court of appeal held that there was
sufficient evidence to support one of the verdicts, but not the amount of
damages or punitive damages. As to the other verdict, the 11th Circuit held
that there was not sufficient evidence to support the verdict of race
discrimination.
Stray Remarks Can Be Discriminatory: Look to Context
The
Supreme Court reversed the 11th Circuit and remanded the case, in part,
disagreeing with the lower court’s analysis of whether use of the term
"boy" standing alone can ever be discriminatory. The 11th Circuit
stated, "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."
The
Supreme Court strongly disagreed with this analysis: "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." (Emphasis added.)
In
the past, courts have relied on what has come to be known as the
"stray remarks" doctrine. This doctrine holds that stray or
isolated remarks are generally not enough to amount to discrimination. For
instance, several gender discrimination cases have relied on this doctrine
to hold that the word "bitch" alone is not evidence of
discriminatory intent.
However,
this doctrine has seen some narrowing over the years. Moreover, when the
decision maker makes the remarks and the context connects them to the
decision, the isolated remark will usually not be disregarded by the
courts.
Clearly,
while the word "boy" is not by itself
discriminatory, when it is used in the South by a white male to his
subordinate black male employee, the word takes on a discriminatory
meaning.
"Jump off the Page and Slap you in the Face" Not A Helpful
Standard
The
Supreme Court also held that the 11th Circuit erred in articulating the
standard for determining whether the asserted non-discriminatory reasons
for the failure to promote were actually a pretext for discrimination. Ash
and Hithon had introduced evidence that their
qualifications were superior to the white employees who eventually got the
job.
As
noted, the 11th Circuit held that when submitting evidence of
qualifications in order to show pretext, pretext could only be shown when
the disparity in qualifications was "so apparent as virtually to jump
off the page and slap you in the face." The court found that this
standard was "unhelpful and imprecise."
However,
the Supreme Court declined to state what the standard in such cases should
be, and fell over backwards stating that it was not taking this opportunity
to set the standard. Thus, rendering the case less helpful in providing
guidance to employers.
However,
the Court did note the 9th Circuit's formulation of this particular
standard - "qualifications evidence standing alone may establish
pretext where the plaintiff’s qualifications are "clearly superior' to
those of the selected job applicant" - with seeming approval.
What Should You Do?
This
case is a reminder to employers that context of remarks is everything. The
circumstances of the remarks, to whom the remark was
made, by whom, the number of times it has been said in the past, the
history of the word, all may cause a "stray" remark to actually
be discriminatory or harassing. A remark may seem isolated and innocent,
but an employer should take all potentially discriminatory remarks
seriously and have a zero tolerance policy against any
discriminatory or harassing remark. Employers should investigate all
potentially discriminatory or harassing remarks, and, when necessary, take
prompt corrective action coupled with efforts to prevent further
discriminatory or harassing remarks from being made. Ash v. Tyson Foods 546
U.S.
___ (Feb.21 2006)
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