San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

Judges are easy targets.  They rule on issues that affect everyone.  They are limited by ethical rules in how or even if they can respond to political attacks.  So, sure, Newt Gingrich attacks Judge Fred Biery as part of his campaign for president.  Mr. Gingrich says he would "do no more than eliminate Judge Biery in San Antonio and the Ninth Circuit."   See San Antonio Express News report.  That's all he would do.  How comforting. 

Mr. Gingrich and others refer to Judge Biery ruling in the Medina Valley High School case.  He found that the school was sponsoring prayer at a graduation ceremony.  I previously wrote about the attacks on Judge Biery here.  Mr. Gingrich refers to Judge Biery as an "anti-religious, dictatorial bigot."  Apart from Speaker Gingrich's grandiose rhetoric, he is flat wrong.  Judge Biery's opinion offered advice, something judges are loath to do, to help the school get through the crisis.  He suggested removing language asking the audience to join in the prayer, so as to avoid the constitutional issues.  He wrote a paragraph suggesting the school district look at this issue as a "teachable" moment in tolerating different views.  In the judge world, he bent over backwards to avoid conflict.  Yet, he suffered threats.

There is a reason why we have independent judges under the US Constitution.  State judges must seek re-election every few years.  Federal judges have a job for life.  Every so often, some politician seeks to restrict that independence.  President Roosevelt attempted to pack the Supreme Court in the 1930's.  President Tom Jefferson sought to remove President Adams' judges and install his own.  Politicians in Florida are trying even now to limit the terms of the state judges in that state. 

But, without an independent federal judiciary, most of the civil rights gains of the 1960's and 1970's would not have occurred.  Judge John Minor Wisdom in New Orleans had to leave New Orleans to avoid the threats.  Without his courage, the schools in New Orleans would not integrated.  Without  a few brave judges in the South, we would still have separate but so-called equal facilities in stores, schools and government buildings. 

I believe Speaker Gingrich does not truly seek to diminish the independence of the federal judiciary.  Some of his rhetoric is often "over the top."    But, if he were to succeed in removing particular judges due to perceived judicial activism, he would indeed curtail the independence that makes he federal judiciary unique and vital to out form of democracy. 

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 Filing charges of EEOC complaints has reached an all-time high.  Though just a small increase over 2010, the filings reflect the state of the economy.  Filings generally rise when the economy worsens.  That is due, I believe, to employers taking advantage of the economic "cover" to get rid of employees and more terminations simply cause more complaints.  See MSNBC report.  

The EEOC said it received 99,947 complaints in Fiscal Year 2011.  35% of these complaints were based on race; 29% alleged gender discrimination; and 24% of the complaints were based on age discrimination.  26% of those complaints were based on disability discrimination.  The EEOC says 18% of those complaints received a "merit resolution," which means they achieved some sort of settlement. 

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Judge Montalvo issued a decision for the Western District of Texas regarding the Americans with Disabilities act.  In Molina v. DSI Renal Inc., 2012 WL 29348 (W.D.Tex. 1/4/12) the court deneid the employer's motion for summary judgment.  The case was filed under the Texas Commission on Human Rights act, but the court interpreted based on the ADA Amendments Act.  Ms. Molina had suffered from back problems for years.  Her employer, however, suddenly decided it could no longer accommodate her.   The employer would not honor her lifting restrictions, saying they would no longer allow anyone to work unless they were fully released by their doctor.  On summary judgment, the employer argued that her back impairment was not a disability.  

But, the judge correctly stated that under the ADA amendments, to determine whether someone is "substantially limited," he must look not to the outcomes that the person can achieve.  Since, an impairment need not restrict or significantly restrict the individual from performing a major life activity in order to be considered "substantially limited."  Instead, as the EEOC guidance points out, the court should "compare the condition under which the individual performs the major life activity" or "the manner in which the individual performs the major life activity" as compared to the general population.  This comparison, said the court, could include the pain with which the individual performs the major life activity.  

As the court noted, the employee learned to work through her pain.  She was able to perform many of the same tasks after her back injury as she did before the injury.  The court noted that she was without pain mostly because she took pain medication.  She still suffered from a disability, concluded the court. 

Under the old ADA, Ms. Molina would have lost with this evidence.  It is the ADAAA's requirement that a judge look at her disability without the benefit of medication that made a substantial difference in her outcome.  The court found that a 20 lb lifting restriction was a substantial limitation on a major life activity of lifting.  He rejected pre-ADAAA decisions which had specifically found that a 20 lb lifting restriction was not a substantial limitation. See additional comments at Disability Blog. 

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I served in the US Army, National Guard and Army Reserve for 28 years.  I served as an Infantry officer for most of that time.  As young Infantry officers, we studied leadership and group dynamics over and over.  Studying leadership has become a favorite past-time for me.  One fundamental principle of Army leadership is that a leader never takes advantage of his position.  He always places his soldiers' welfare ahead of his own.  For example, in the field during training, we should never eat before our men eat.  We should never "sneak off" to get a shower if our men could not do the same. 

This principle was violated, sometimes.  But, even in the violation, it helped confirm the rule.  We, my colleagues and friends, always avoided serving in military units that violated this basic leadership principle.  We knew leaders who placed their own comfort before that of their soldiers.  We always found it shameful and abhorrent. 

In a war zone, I saw leaders again place their own welfare ahead of the troops they commanded.  It was, fortunately, rare, but it did occur.  I understand that the Cruise Ship Captain who abandoned his ship before his passengers evacuated violated several laws of the sea.  He had a duty to see to their evacuation before securing his own safety.  Cpt Schettino was ordered by a Coast Guard commander back to his cruise ship to coordinate the evacuation.  Cpt Schettino merely responded that it was too dark to go back to his ship. 

It is easy to criticize the captain.  The word "cowardice" has emerged.  But, I prefer to wait a little longer to learn more about what happened.  One of the wonderful tools provided by the Army is the Center for Army Lessons Learned (CALL).  The CALL Center historians and writers research and write up the best war vignettes and battles - most of these stories concern leadership in many different contexts.  At one time, i was sure that I had read them all.  CALL produces more every year, so now, I am long behind.  One paper I recall looked solely at what leadership traits made effective combat leaders.  That is, what could we look to in training or education to help mold good leaders under stress.  Physical conditioning perhaps?  Knowledge of weapon systems?  Surely, prior combat experience would make a big difference.  No, in the end, it was none of these things. 

The paper's conclusion was that closeness to your buddies, a sense of comraderie was the only reasonably good predictor of success in that most stressful of situations, combat.  Readers may be familiar with the Mel Gibson movie, "We Were Soldiers."  The movie concerned an Infantry battalion during a pivotal battle in the Viet Nam War.  The movie was based on a book with the same name.  Then Lt.-Col. Hal Moore commanded the Infantry troops.  LTC Moore's battle turned out well against overwhelming odds.  His battalion survived when sheer force of numbers should have decimated his soldiers.

But, those who have not read the book do not know that the second half ot the book concerned a second battle with an entirely different Infantry battalion.  That second battle was a disaster.  The second battalion walked into a well planned and well-executed ambush.  The commander was a seasoned veteran with solid combat experience.  But, as the battle unfolded, the commander was said to have been dis-engaged.  In effect, he withdrew from the carnage and let his subordinate leaders react on their own.  The battalion commander was new to the unit.  He had just joined them shortly before the battle.  Emotionally, he was not really a part of the unit.  When the situation devolved to gut instinct, the new commander's instinct was to sit under a tree during the horrific ambush. 

Did Cpt. Schettino just join the ship before the cruise?  Did he have reason to feel disaffected from his crew and passengers?  Nothing can justify running away from a situation that demanded the ship's captain more than ever.  He is still a "dirtbag," in my opinion.  But, still, i prefer to wait and hear the rest of the story.  How many office managers have a reason to feel dis-affected from their subordinate employees?  How many employees suffer because a manager is ill-trained for the task at hand?  

In the Army, we call this phenomenon "sh-- rolls downhill."  The leader at the top sets the standard for everyone s/he supervises.  They set the tone for the rest of the company.   In the business world, we call this phenomenon poor training and poorly run companies result in many lawsuits. 

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 "Cease and Desist" letters can be rather assertive.  By definition, they assert someone's rights.  But, they need not always frighten the recipient.  See this link for a response to one such cease and desist letter.  San Antonio's own Freetail Brewing Company received a cease and desisist letter regarding its use of the name "Hoposaurus Rex."  Freetail used it for a beer or a beer process.  Receiving a threatening letter, the owner responded with a thank you, said he loves to hear from peoiple all over the country.  As Scott Metzger explained, his company did not use the name enough to care about it.  He offered his total "acquiescence" to their demand to stop using the name.

He requested (but did not demand) that the lawyer tell his client that Freetail would have been happy to give up the name if they had simply asked nicely.  Mr. Metzger asked (but did not demand) the lawyer to please tell his client that he would like to try their beer at the next beer festival, but would probably not give him a hug.  Mr. Metzger even included a nice drawing of a Tyranosaurus Rex waving a white flag......

A lesson we can all learn.  When next you consider a lawsuit, first consider what is the harm?  What damage have you suffered?  Then, ask yourself is that damage enough to justify time, expenses and energy.  If the lawsuit has no harm or the harm cannot justify a lawsuit, then simply consider the experience to be one of life's educational opportunities. 

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You work for a company for 30 years, acquire a skill, and then join a new, smaller company doing the same job.  You think you have reached a certain level of success.  But, no, you have not.  That is Teresa Jackson's exprience.  She worked for the Scooter Store in Newe Braunfels, Texas for over 31 years as a sales representative.  She left to join Patient's Choice, LLP of Arlington Heights, Illinois.  Patient's Choice is a competitor of the Scooter Store. 

The Scooter Store sent a cease and desist letter to Ms. jackson and filed suit.  They later added Patient's Choice to the lawsuit.  So, Patient's Choice fired Ms. Jackson to get out of the lawsuit.  Patient's Choice offered to rehire Ms. Jackson if she settled the case with the Scooter Store.  But, she reached an agreement with Scooter Store not to work for any competitors for two years.  She said she tried to find a lawyer to help her.  She spoke to 17 lawyers but could not find anyone to help her.  

The Scooter Store said it would suffer irreparable injury if Ms. Jackson was not stopped.  Meaning apparently, that the Scooter Store sought a temporary restraining order stopping her from selling scooters for any competitors.  Ms. Jackson denies the Store's claims.  She says she has no trade secrets.  She just knocks on doctor's doors until someone buys a scooter.  Ms. Jackson says she was railroaded.  

I am sure she is correct.  Ms. Jackson must have signed a non-compete agreement with the Scooter Store.  Texas has a statute that addresses the permissible limits of a non-compete agreement.  Judges impose some limits.  But, still a valid non-compete agreement will impose a time limit and a geographic limit on a worker going to work for a competitor.  Two years is about as long as any court will allow such an agreement. The geographic limits can include states or regions.  The law, in effect, recognizes a temporary, local sort of slavery.  It is part of the price we pay to support businesses and "job growth." 

As I have explained to many potential clients, there is no guarantee that the law will be fair.  Ms. Jackson cannot work for a competitor for two years.  She cannot do work in which she has surely found some success.  But, in the meantime, she must pay her bills and will likely end up in a new industry doing some new job for much less pay.  In two years, employers like People's Choice may not want her skills.  See San Antonio Express News report. 

Yes, its is hard to find an employment lawyer.  We are out here.  But, even if Ms. Jackson did find one of us, there may have ben nothing anyone could do.  Most employers know how to draft a non-compete agreement to make it binding.  The NFL has free agency.  Local business does not. 

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 The U.S. Supreme Court has issued a decision regarding the ministerial exception to Title VII.  Title VII of the Civil Rights act of 1964 prohibits discrimination.  But, for decades, courts have excepted religious institutions from Title VII.  Based on the First Amendment, all circuit courts have recognized that a religious institution may discriminate based on religion.  That is, a Baptist school may require that teachers subscribe to the Baptist faith and even to attend Baptist chiurches.  

In Hosanna-Tabor Evangelical Lutheran Church v. EEOC, Et. Al., No. 10-553, Cheryl Perich taught many classes, one of which was religion.  She was a "called" teacher, meaning she had received theological training.  Without that training, she would be considered a "lay" teacher.  She developed narcolepsy and went out on disability leave.  After several months, she notified the Principal that she could return.  The school, however, told her she had been replaced by a lay teacher.  The Principal expressed concern that Ms. Perich was not truly ready to return to teaching.  The school offered to pay her health insurance for several months in return for her resignation.  When Ms. Perich refused, she was fired.  

The EEOC filed suit, arguing the school was guilty of disability based discrimination.  Ms. Perich joined the lawsuit. The employer moved for summary judgment, invoking the ministerial exception, since Ms. Perich was a "called" teacher.  The lower court granted summary judgment in favor of the employer.  The Sixth Circuit reversed.  The employer then appealed to the Supreme Court. 

The EEO and the plaintiff tried to argue that religious freedom is protected by Title VII.  Title VII itself  prohibits discrimination based on religion.  The court dispensed with that issue quickly.  The real issue was whether the ministerial exception would apply.  Was Ms. Perich a true clergy for purposes of the First Amendment?  The Supreme Court unanimously said she was and found in favor of the employer.  The Supreme Court overruled the Sixth Circuit's finding that Ms. Perich performed the same religious duties as lay teachers.  The court noted that lay teachers performed those duties only when called teachers were not available.  

The Supreme Court noted that yes, Ms. Perich performed many secular duties.  In fact, her religious duties comprised only some 45 minutes out of her normal work day.  But, the court simply noted that that fact alone is not sufficient to make her something other than a minister.  Many full-time ministers perform secular duties, as well, said the court. 

The Supreme Court thus rejected the "function" test regarding the ministerial exception.  The Supreme Court did not provide an alternative test, but noted that the teacher in this case had been certified by her faith as a "called" teacher and performed religious duties on a regular basis. 

The EEOC also argued that the ministerial exception here was pretext.  The school was actually motivated by the employee's disability.  The Supreme Court, however, simply, responded that the ministerial exception applies to all employment decisions. 

This decision does not change the law.  The courts of appeals have long recognized the ministerial exception.  But, now it has Supreme recognition......   See decision here. 

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Judge Sam Sparks, a U.S. District Judge in Austin, has addressed the very important issue of beer in Texas.  As the judge notes, no one would question the sincere interest of Texans in their beer.  Authentic Beverages Company Inc. filed suit regarding Texas' beer statutes.  The statutes and regulations divide beer distributors into three tiers, manufacturers, wholesalers and retailers.  These statutes prevent any overlap between the three tiers.  These statutes have made it difficult for the new microbreweries to develop in Texas as they have developed in other states.  

The suit challenged the statutes and regulations on three First Amendment grounds: 1) they prohibit breweries and distributors from telling customers where their product can be bought, 2) they require inaccurate terms, e.g. "malt," "ale" and "malt liquor," 3) prohibit advertising the alcoholic strength of the product.  For example, the plaintiff claims that "ale" is misleading.  Texas uses the term to refer to a specific alcoholic content.  But, in reality "ale" refers to a specific fermentation process, regardless of the alcoholic content. 

The suit is based on commercial free speech and equal protection arguments.  One of the requirements of commercial free speech is that the state must articulate some legitimate government interest in the regulation.  The Texas Alcoholic Beverage Commission and the Attorney General were unable to to articulate a legitimate government interest, found the court.  Indeed, Judge Sparks noted several times throughout the opinion that the AG's office presented little to no evidence for its positions. 

For example, regarding the distinction between "ale" and "beer," the TABC argued that the misleading definitions used in the Alcoholic Beverage Code work because the average consumer does not appreciate the true difference between ale and beer.  The statutory difference is that ale supposedly has higher alcohol content.  The Court found TABC's position "laughable."  The TABC was essentially arguing that since no one knew the difference, the Texas Alcoholic Beverage Code could use whatever definition it preferred.  The evidence presented by the plaintiff was to the contrary, that ale actually refers to a specific fermentation process, not the alcohol content. 

The Court found that the defendant, the TABC, failed to present contrary evidence and often failed to even respond to Authentic's arguments - whether through oversight, laziness or tactical error. 

The plaintiff also advanced Equal Protection arguments.  For example, the regulations prohibit breweries from selling their product at the point of production, but allows wineries to do so.  The laws also prohibits brewpubs from selling to distributors and retailers, but wineries and microbrewers can.  See the Texas Alcoholic Beverage Code, Chap. 74. 

The judge found that Sec. 108.01(a)(4) of the Alcoholic Beverage Code unconstitutional.  The court found that Texas may not require malt beverage producers to use the state definitions of "beer" and "ale."  That does not mean the TABC cannot require producers to accurately label the alcohol content of the product.  But, it does mean the producers may use more accurate definitions.  The court limited the state's ability to divide producers and retailers.  That is, any such regulations must be more narrowly tailered to achieve the desired end. 

In strong language for a judge, the court said it was "shocked and dismayed" at the "half-hearted" defense by the Texas Attorney General's Office.  See Judge Sparks' decision here.  But, Texas beer drinkers have reason to be happy....

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 A few months back, the US Army in Afghanistan started tweeting about events in that war zone.  They tweeted when the terrorists attacked civilians and killed women and children.  The Taliban responded with a tweet critical of US forces.  See report of one exchange between the good guys and the Taliban.  In this exchange a few weeks ago, the US Army tweeted, how long will the Taliban continue to put innocent Afghans in harm's way?  The Taliban responded "I dnt knw. U hve bn pttng thm n 'harm's way' fr da pst 10 yrs. Razd whol vlgs n mkts. n stl hv da nrve to tlk bout 'harms way.'"  

You can't make this stuff up..... 

Now, an Israeli law center is threatening to sue Twitter unless they remove the twitter access for groups like Hezbollah and Al-Shabaad.  The Shurat HaDin law center has cited a US Supreme Court case finding it unlawful to support terrorist organizations. 

Sen. Joe Lieberman has also started efforts in the US Senate to require Twitter to block Taliban use of tweets.  See blog post about these efforts to shut down free speech on the internet.

Yes, modern warfare does involve the internet....

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The National Labor Relations Board has issued a ruling addressing employment agreements with arbitration provisions. The agreement in this decision prevented an employee from filing a class action.  See NLRB decision.  The case concerned an agreement used by the homebuilder, D.R. Horton which provided that employees had to bring employment claims to an individual arbitrator.  The employee could not file their claim as part of a class action.  The agreement prevented an employee from fling suit in court as part of a group or class action.  

The NLRB enforces the National Labor Relations Act, the 1930's era statute that protects workers who form unions.  The NLRA also allows workers to discuss terms and conditions of their job - whether they have a union or not.  This provision of the NLRA allows employees to engage in "concerted activity," meaning group activity regarding their jobs.  The Board found that the D.R. Horton agreement infringed on concerted activity.  The ruling does not require class arbitrations.  But, it does find that no agreement may foreclose the possibility of groups of employees seeking remedies in a judicial forum. 

For many years, federal courts have been trending toward affirming employment agreements requiring arbitration of claims.  This D.R. Horton decision is a rare setback for that trend.   

The NLRB is composed of members appointed by the President.  Consequently, it is not unusual for decisions to be changed dramatically when a new administration takes over.  When the administration changes, this decision may well change. 

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I spent twelve months in Iraq.  We taught and coached Iraqis on the finer points of democracy.  I served with some 140,000 other soldiers and service members.  As soldiers, I thought we did pretty well under the circumstances.  For a country long accustomed to strong central governance, there was visible progress on their ability to govern themselves.  But, we could not teach them tolerance.  

I know our presence, our money, our training served as a brake on their worse instincts.  We did solve some problems at the time by asking U.S. Army higher-ups to exert pressure on Iraqi higher-ups.  The U.S. Army is gone, now.  The Iraqis must apply their own brake now.

Sectarian strife is rising again.  See CBS news report.  Someone, surely Sunnis or Al Qaeda, are attacking the Shiites, again, as they simply proceed to holy sites on holy days.  As before, I am sure Al Qaeda or its allies, seek to provoke Shiite reprisal for reasons best known to the terrorists.

Its a place where the tension is just below the surface.  The Sunni-Shiite differences are superficial, in my opinion.  The Shiite revere past Imams.  The Sunnis do not appreciate their clergy in the same way.  These and other reasons separate the two Muslim sects.  They worship differently, yet they worship the same god.  U.S. citizens may not believe it, but many, a great many Muslims are very gentle and decent.  It is unfortunate that extremists of both sects can generate so much violence so easily. 

At a Army Reserve school many years ago, our instructor was a college professor in his civilian life. In his civilian job, he was visiting science colleagues in Malaysia.  In Malaysia, they have a large ethnic Chinese community.  The Malays and Chinese do not get along there, either.  The Reserve instructor, a Lieutenant-Colonel, told us how he was driving somewhere with a Malay colleague.  The Lieutenant-Colonel saw a horrible car wreck.  A man was killed.  He remarked how bad it looked.  His Malay friend somehow recognized the victim as Chinese.  The Malay merely remarked, "good - one less Chinese."  The instructor was describing intolerance.  Not to diminish racial prejudice, he did want to put the issues of intolerance in a world perspective. 

As a civil rights lawyer, I see racial and religious intolerance frequently.  But, thank goodness, our intolerance is nothing like the intolerance we see in elsewhere in the world.  I cannot help but think that our mechanisms, such as the Civil Rights Act of 1964 have done much to relieve the pressure of intolerance and hate.  I left Iraq very appreciative of our country and all that we have.  

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There is a story making the rounds of the internet about a man named Dave who ordered some gaming controllers.  He paid for them and expected to receive a pre-order discount.  Ocean Marketing's Public Relations representative, Paul Christofor, however, had bad news for him.  Paul told Dave via email that he placed an order, the product had to be tweeked, and Dave should just "put on his big boy hat" and wait it out like every one else.  Paul then suggested Dave cancel his order, as Paul could sell the controllers on Ebay for $150 easily.  Paul then added, Have a good day, Dan."

Dave replied, upset and mentioned that Paul displayed poor public relations skills and said he wanted his controllers.  He made it clear his name was Dave and called Paul a b--tch.  

So, Paul responds with a rambling email that says he is 38, has been on the internet since Dave was sperm, and tells Dave he should grow up and do something more productive with his life than play online games.  Dave forwards the email to an online comic strip artist, who Paul had mentioned.  The comic strip artist  said he will cancel Paul's booth at a popular gaming festival.  

Paul responded with more beligerence.  He referred to Dave as "Mike."  Other online contacts learned of Paul's poor marketing skills and tweeted about it.  Paul responded with more caustic comments to them.  And, now, N-Control and Ocean marketing decline to respond to these events.  See story.  

The internet is not for the faint of heart.....

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Whistleblowers have a rough row to hoe.  George Green knows this better than anyone.  A former architect for the Texas Dept. of Health and Human Services, he blew the whistle on shoddy building practices at DHHS some 25 years ago.  DHHS fired him in 1989 for alleged sick leave issues.   In 1991, the jury awarded him $13.7 million in total damages.  But, because that amount was so high, he had to lobby the state leglslature to pass a bill appropriating that amount.  Under state law, a state official cannot sign a check over a certain dollar amount.  It was four years before the state legislature awarded this amount. He lobbied himself and hired others to help him lobby the state government.  He received his check sometime in the early 90's.  

The jury awarded some $10 million in punitive damages.  Apparently, Plaintiff Green reached an agreement with former Lt.-Gov. Bob Bullock that the state would not pay punitive damages.  The whole concept of "punitive damages" is hard for defendants to accept.  That agreement apparently caused him tax trouble with the IRS.  See San Antonio Express News report.  Punitive damages are, I am told, taxable income to the person receiving them.  So, I presume Mr. Green did not pay all of his taxes.  After all his trouble with the IRS and paying lawyers, Mr. Green emerged with only $300,000.  

Mr. Green appealed the tax issues to the Fifth Circuit Court of Appeals in New Orleans and lost.  The court found that Mr. Green's damages were punitive damages, regardless of the agreement he reached with Bob Bullock.  Mr. Green had tried to argue that the damages were actual damages based on his health issues. I have to say that does sound like risky strategy.  Courts and the IRS would surely look at the actual jury award and jury charge to determine what the jury awarded.  Any subsequent agreement would appear to be designed to avoid tax liability. 

He also lost a lawsuit filed by a consultant.  That cost him $600,000.  He says he had some 200 attorneys, accountants and consultants working for him at various times.  Now, he lives on his father's monthly retirement check, trying to start a business growing grapes and tending bees. 

But, it sounds like he would still today, after all these troubles, still have blown the whistle....

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Use of the term "boy" to refer to adult African American men is usually thought to constitute some degree of racism.  Yet, the 11th Circuit Court of Appeals has struggled with a case in which that term was used.  The case is known as Ash v. Tyson Foods, Inc.  It has been to the 11th Circuit four times.  It was once heard by the U.S. Supreme Court.  The Supreme Court overruled the 11th Circuit and found that the term "boy" could reflect racial bias.  In that decision, the Supreme Court also rejected the "jump off the page and slap you in the face" test for reviewing comparative employees qualifications.  See Worplace Prof blog entry.  That test had been used by some courts when reviewing claims that an employee with inferior qualifications was picked over a minority for promotion.  Some courts formerly claimed the difference in qualifications should be so stark as to "jump off the page and slap you in the face."  The Supreme Court rejected that very subjective test. 

Regarding the "boy" term, the Supreme Court sent that issue back to the trial court for retrial, saying it could show racial animus. 

On each prior appeal of Ash v. Tyson Foods, the 11th Circuit steadfastly refused to see any racial animus in the use of "boy."  Despite the first jury verdict in favor of the plaintiff.  After a second trial, the appellate court has finally reversed itself and now admitted to the obvious.  See the opinion here.  As the court finally noted, the context, tone, inflection and historical usage of such a term affect significantly its meaning.  Id., at page 6. 

It is hard to understand how some judges are so out of tune with the world most of us know.  The Fifth Circuit rejected "boy" as a perjorative term in a case in 2009.  See my prior post.  The 11th Circuit rejected the same term in another case.  See my prior post about that case, Alexander v. Opelika City Schools.  As I have discussed before, many federal judges disfavor discrimination cases.  I tend to believe that many judges simply come from life experiences where they were just not exposed to raw racism.  Unfortunately, that is not the world most of us experience. 

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