Workplace Prof Blog

Boy Oh Boy

The Eleventh Circuit's continuing struggles with the apparently intractable question of when the use of the word "boy" to address a adult African American male may have finally reached a conclusion, and one that most thought was obvious from the beginning. 

The case is, of course, Ash v. Tyson Foods,  which has had no fewer than five trips to the circuit court, one prompted by the Supreme Court's reversal of an opinion that not only refused to read any racial overtones into the use of "boy" but also deployed the infamous "slap in the face" test to limit the use of comparators. I've addressed the latter issue at perhaps excessive length,  The Phoenix from the Ash: Proving Discrimination by Comparators, 60 Ala. L. Rev. 191, 204-06 (2009), but the boy issue is the one that refused, until now, to go away. 

It has gotten considerable attention over the years, see, e.g., here and here, and here, and this time is no exception.  Indeed, since the latest turn is a man-bites-dog story, the revival of public attention is not surprising. Put simply, after four time resolutely finding boy to be of no significance, or at least not enough significance to (in connection with pretty powerful comparator evidence) justify the jury verdict in plaintiff's favor, the Eleventh Circuit panel finally threw in the towel in Ash V:  at least in view of evidence at the retrial about "context, inflection, tone of voice, local custom, and historical usage," a white supervisor's addressing a black adult male as boy evidences discrimination.

The point is so obvious that the panel's having taken so long to get there, including a second trial, would be humorous but for the message sent to civil rights plaintiffs and their attorneys.

Why the panel finally reversed itself is not so clear. Given its obstinacy over the course of four previous opinions, maybe "Christmas miracle" is the best answer. However, less supernatural speculation centers on the public scorn for the panel as a result of the amicus brief filed by a number of civil rights leaders, many of whom are household names.  The resultant risk of reversal by the circuit en banc might have seemed overwhelming.

While it's not good news that such heroic measures needed to be taken to preserve a jury verdict for plaintiff, the plaintiff's attorney, Alicia Haynes, should be congratulated for both her perseverance and the effectiveness of her advocacy.

 CAS

Labor & Employment Roundup

Here's the holiday edition of our labor & employment roundup:

• The new Special Counsel is putting more teeth into that office than we've seen in years, and gotten some backlash--particularly Rep. Issa---as a result.
• Bill Gould (Stanford) on the ramifications of the NLRB having only two members.
• Recess appointments for new NLRB nominees?
• The D.C. Circuit holds that the NLRB needs to give a better explanation for its decision not to reduce backpay awards by the interim earnings of employees whose hours were unilaterally, and therefore illegally, cut.
• The NLRB's most recent Venetian decision, answering the D.C. Circuit's remand inquiry by concluding that calling the police to remove union protestors on a sidewalk violated the NLRA, in spite of the Noerr-Pennington doctrine (because calling the police was not a direct petitioning of the government).

Hat Tip:  Dennis Walsh

-JH

DOL Developments

Kenneth Shiotani (National Disability Rights Network) sends us word of two Department of Labor developments:

• The DOL is publishing its draft Environmental Justice Strategy in response to the Memorandum of Understanding with the Interagency Working Group on Environmental Justice (EJ IWG) signed in August 2011. President Obama has renewed agencies’ environmental justice planning by reinvigorating Executive Order 12898 (EO 12898), which tasked Cabinet-level Federal agencies with making environmental justice part of their mission. The agencies were directed to identify and address, as appropriate, the disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority and low-income populations.
  
  The Department views Environmental Justice from a workplace training, health and safety perspective. The Department is developing an Environmental Justice Strategy that is in line with the mission of the Department and Secretary Solis’ vision for the future: good jobs for everyone. The vision of good jobs for everyone includes ensuring that workplaces are safe and healthy; helping workers who are in low-wage jobs or out of the labor market find a path into middle-class jobs; and helping middle-class families remain in the middle-class.

• The DOL's notice of proposed rulemaking on the application of the FLSA to home care workers was published in the Federal Register today.  Comments are due on or before February 27, 2012.

rb