Jottings By An Employer's Lawyer

Tuesday, February 21, 2006

Roberts/Alito Court Employment Law Scoreboard: Employees One, Employer Zero

After the first employment law case decided post-Roberts (but before Alito) there were some raised eyebrows in the employer community, since that unanimous decision was generally viewed as favorable to employees in its interpretation of the Portal to Portal Act and its implementing regulations. See While I Was Vacationing, the Supremes Were Whistling at Work. Those arched brows might rise a little higher after the first employment law opinion in the Roberts/Alito era.

In an unusual summary opinion, without hearing oral argument, the Court today sent back to the 11th Circuit for further review its holding that a jury verdict in favor of two employees was appropriately set aside. Ash v. Tyson Foods, Inc. (S.Ct. 2/21/06) [pdf]. The Court felt compelled to do so because of two separate statements in the underlying opinion*:
  • The 11th Circuit held that the use of the term "boy" without prefacing it with a racial qualifier such as "black" or "white", was not evidence of discrimination. The Supreme Court wants a much more nuanced interpretation:
    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.
    The error it seems was the lower court's overstatement that without a qualifier it could never be evidence of discrimination.

  • The second misstatement occurred when the Court held that pretext could be established by comparing qualifications, only when "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face." In vivid language the Court found:
    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.

    A much more bland version (that perhaps means the same thing) --- "disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question" was quoted, along with articulations used by other courts -- although the Court noted this was not the time to "define more precisely what standard should govern pretext claims based on superior qualifications. "

Neither of these holdings in and of itself seems to be a change, much less a drastic one, in existing law, although the "slap you in the face" language was a nice bit of rhetoric to have on one's side. And the Court may have been influenced by the petitioner's brief listing six pages of decisions in the 5th and 11th Circuits using that language.

What is more significant is when the highest Court whose function is more clearly viewed as making sure the law of the land is correct and ultimately uniform, than in making sure that any one case is not improperly decided, goes to the trouble of calling a lower court on these "overstatements." That is a higher level of scrutiny in the employment arena than many have come to expect. It may be nothing, but my guess is that in many federal court chambers, today's action will not go unnoticed.

*The appeals court decision is found in the appendix to Petitioner's petition for writ of certiorari.

A hat tip to Ross Runkel at for the first alert to today's decision.

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