Watch Your Words! Pretext and Problems
 
May 3, 2006
 

The most important issue in a discrimination case is whether the plaintiff has enough evidence to get before a jury. This often turns on the issue of “pretext” – whether the employee can show that the employer’s stated reason for a challenged employment decision is a lie to cover up discrimination. The U.S. Supreme Court recently issued a decision that makes it somewhat easier for employees to get before a jury on their discrimination claims. It ruled that the Court of Appeals for the Eleventh Circuit (Alabama, Florida and Georgia) used the wrong standard for determining whether use of the word “boy” when addressing an African-American male is evidence of racial animus and also used the wrong standard for evaluating challenges to an employer’s claim that it chose the most qualified individual for a promotion. The Supreme Court sent the case back to the lower court for further consideration.

Anthony Ash and John Hithon were African-American superintendents at a Tyson Foods poultry plant; both sought promotions to open shift manager positions that were filled by white men. They sued, claiming that they were denied the promotions because of their race. Tyson responded to the promotion discrimination claims by asserting that the employees chosen for the promotions were more qualified. During the trial Ash and Hithon introduced evidence that the plant manager who made the disputed decisions had referred to each of them as “boy” on occasion. Ash and Hithon also introduced evidence that their qualifications were superior to those of the white males selected.

The Alabama jury found for the employees and awarded compensatory and punitive damages. Tyson moved for judgment in its favor regardless of the verdict; the trial court granted the motion or, in the alternative, ordered a new trial.

The court of appeals ruled that the trial evidence with regard to Ash was not sufficient to show pretext and thereby to show racial discrimination. It held that there was enough evidence with regard to Hithon to permit the jury to decide the case, but that there should be a new trial on his claims because the evidence did not support the decision to award punitive damages or the amount of compensatory damages that had been awarded. In particular, the court concluded that the use of the term “boy” was evidence of racial discrimination only when modified by a racial term such as “black” or “white.” It also concluded that Ash had not presented sufficient evidence that he was better qualified to allow a jury to conclude that the company’s reliance on the qualifications of others was a mere pretext for discrimination. It stated that a plaintiff’s claim that he was more qualified than the individual chosen for a position was sufficient to allow a jury to find pretext only if the disparity in qualifications was “so apparent as virtually to jump off the page and slap you in the face.”

Supreme Court Reverses

On further appeal, the Supreme Court reversed. It first held that the court of appeals erred in concluding that the term “boy,” standing alone, was not evidence of discrimination. “It does not follow that the term, standing alone, is always benign,” the Court stated. The court of appeals erred in holding that “boy” must have a modifier to be discriminatory and the question should remain open for trial.

The Supreme Court also held that the court of appeals applied too strict a standard for assessing when an alleged disparity in qualifications constitutes sufficient evidence for a jury to find that an employer’s alleged reliance on qualifications is a pretext for discrimination. The court of appeal’s requirement that the disparity in qualifications be “so apparent as virtually to jump off the page and slap you in the face” in order to constitute pretext is “unhelpful and imprecise.” Refusing to define the standard more precisely, the Supreme Court held that the court of appeals should set forth another test to ensure consistent results from the trial courts.

What Is the Standard for Showing Pretext?

The Supreme Court has approved an employee’s showing that she was better qualified than the person selected; a showing that the employee presented a prima facie case and sufficient evidence that the employer’s reason was false; a showing that no reasonable person could have chosen the selected person over the rejected candidate; and a showing that the reasonable employer would have found the plaintiff employee better qualified than the person selected. The practical implication for employers is that it will be harder in the Eleventh Circuit to win summary judgment in employment discrimination cases, and that employees will be more likely to be able to take their claims to a jury.

For more information, e-mail Todd Steenson at todd.steenson@hklaw.com or call toll free, 1-888-688-8500.

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