Thursday, December 29, 2011

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 New Imagemay 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.


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