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Supreme Court: "Slap you in the face" is the wrong test
February 21, 2006 by Ross Runkel at LawMemo
Plaintiff's superior qualifications, compared to the employee who got the job, can be evidence of pretext in a Title VII case. The US Supreme Court now has rejected the 11th Circuit's requirement that the difference in qualifications must be so great that they "slap you in the face."
Poetic imagery, but not a proper legal standard.
Two African-Americans were superintendents who were denied promotions, and sued claiming race discrimination in violation of Title VII and 42 USC Section 1981. They prevailed in a jury trial; the trial court granted the employer a new trial; the 11th Circuit affirmed in part and reversed in part. The US Supreme Court granted certiorari and remanded the case, without even hearing oral arguments.
The employees submitted evidence that their qualifications were better than the two whites that were promoted. This evidence was designed to prove pretext. The 11th Circuit's rule (also the 5th Circuit's) is: "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.'" US Supreme Court said that this visual image "is unhelpful and imprecise." The Court rejected the 11th Circuit's standard without suggesting what the proper standard is.
Ash v. Tyson Foods (US Supreme Court 02/21/2006).
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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