In a significant employment related decision, the U.S. Supreme Court held that the Eleventh Circuit used an improperly vague standard in evaluating the evidence in a race discrimination case. Accordingly, the Court ordered the Eleventh Circuit to reconsider the evidence using a more precise standard. See Ash v. Tyson Foods Inc. (Feb. 21, 2006). The Court also held that the Eleventh Circuit was wrong when it held that a supervisor's use of the term "boy" in referring to the two African American employees who sued Tyson Foods was not evidence of discrimination because it was not modified by a racial classification.
In this case, the two employees sued Tyson Foods for race discrimination after they were passed over for promotions. In support of their discrimination claims, the employees presented evidence that the white supervisor who made the promotion decisions referred to each of them on several occasion as "boy." The Eleventh Circuit held that the use of the term "boy" alone, without racial modifiers, is not evidence of discrimination. The Supreme Court held that this determination was erroneous, stating that while it is true that the use of the word "boy" is not always evidence of racial animus, "it does not follow that the term, standing alone, is always benign."
Additionally, the Supreme Court held that the Eleventh Circuit used an improperly vague standard for determining whether the employer's stated nondiscriminatory reasons for not promoting the employees were pretext. Here, the employees presented evidence that their qualifications for the sought-after positions were superior to those of the individuals who were hired. In finding this evidence insufficient to establish pretext, the Eleventh Circuit, citing one of its earlier opinions, stated that "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.'"
The Supreme Court rejected this standard, holding that 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." The Court noted that it has previously held that, in some cases, evidence of superior qualifications may be sufficient to show pretext. Additionally, the Court noted that the federal appeals courts, including the Eleventh Circuit, have used various other standards for determining when evidence of superior qualifications can establish pretext for discrimination.
For example, the Eleventh Circuit has previously held that disparities in qualifications must be so significant that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the aggrieved individual. Other courts have held that qualifications evidence may be sufficient if the aggrieved individual's qualifications are "clearly superior" to those of the person selected or a reasonable employer would have found the aggrieved individual to be "significantly" better qualified for the job. Even in Ash the Eleventh Circuit noted that qualifications evidence could show pretext when combined with other evidence.
The Supreme Court declined to adopt a specific standard for determining when evidence of superior qualifications is sufficient to establish pretext, but held that a test other than the "slap you in the face" standard the Eleventh Circuit articulated in its original decision "would better ensure that trial courts reach consistent results."
Employers' Bottom Line:
Courts have repeatedly stated that they will not second guess an employer's business judgment in evaluating whether an employment related decision is discriminatory. An employee's claim that he or she was better qualified than the individual chosen for a sought-after position essentially asks a court to do just that. It is to be hoped that the Eleventh Circuit will adopt a more precise, but equally stringent, standard as that rejected by the Supreme Court when evaluating whether an aggrieved individual's qualifications evidence is sufficient to establish pretext.
Additionally, this case demonstrates the importance of training managers and supervisors to be aware that even comments that they may not view as offensive or discriminatory may be viewed in that way by their employees and, ultimately, a jury. It is also important to ensure that employment decisions, especially those that adversely affect employees in protected categories, are supported by documented, consistent business reasons. Doing so may help employers avoid time-consuming and expensive employment related litigation.
If you have any questions regarding this case or any other labor or employment related issue, please contact the Ford & Harrison attorney with whom you usually work.