Part of the problem in identifying racism is we as a country do not agree on what "racism" is. I remember back when I was in college in Ft. Worth, Texas in the 1970’s, a local federal judge was accused of racism because he sometimes used the n-word. Today, most of us would agree that using the n-word indicates a racist bias. But, back then, one or two of my more moderate friends argued no, that is just the way the judge was raised. He came from a time when "everyone" used the n-word. Well, that is not true. Not everyone who grew up in the 1920’s and 1930’s used the n-word. But, regardless, times have changed and most people recognize today that use of the n-word reflects some racist bias.
Under Title VII, racism generally includes any action that cannot be adequately explained. If someone is fired for no apparaent reason, a jury may conclude that the termination was motivarted by improper reason, such as racism. In Louisiana, one of my favorite places, the state Supreme Court has been engaged in a fuss fight over whether Bernette Johnson should become its Chief Justice. Judge Johnson has seniority. Judge Johnson is black.
Under court rules and the state Constitution, she should ascend to the Chief Justice position based on years of service. The justice with the next highest seniority, Jeff Victory, argued he should be the Chief. Judge Victory is white. He claimed that Judge Johnson served 4 years as an appointed justice and that appointed time should not count.
Her appointment is a story in itself. Her appointment came about after protracted litigation itself.
Judge Johnson, Victory and a second justice recused themselves from the decision. The four remaining justices and three more designated district court judges resolved the dispute and ruled that Judge Johnson should be the chief judge. See CBS news report.
Judge Johnson filed suit in federal court last July. The U.S. District Court found that Judge Johnson had more seniority under the Louisiana Constitution. But, the federal court did not order that she be instituted as chief judge. The Louisiana Supreme Court came to their own conclusion. If they had found differently, would that have reflected racism? Perhaps. But, in the end, they did the right thing. Chief Justice Johnson becomes the first black Chief Justice in Louisiana history. And, the state will be better for it.