After two reversals by the United States Supreme Court, the 11th Circuit has held yet again that the use of the term "boy" to address a black man did not constitute evidence of racial discrimination:
Finally, the testimony about the two occasions when Hatley used the term “boy” was not enough evidence to create a jury issue as to whether Tyson’s proffered reason for choosing Dade was a pretext for racial discrimination.5 In Ash III we applied the factors set forth by the Supreme Court to the evidence on the record before us at that point, and we concluded that “the [‘boy’] comments were ambiguous stray remarks not uttered in the context of the decisions at issue and are not sufficient circumstantial evidence of bias to provide a reasonable basis for a finding of racial discrimination in the denial of the promotions.” 190 Fed. Appx. at 926. Under the law of the case doctrine only if “new and substantially different evidence emerge[d] at [the second] trial,” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1292 (11th Cir. 2005) (quotation marks omitted), can we revisit that conclusion of law. See id. New and substantially difference evidence about the use of the word “boy” was not presented at the retrial.The DBR quotes the plaintiff's lawyer, who was chastised by the Court for leading questions:
“The concern is that any time you present that type of evidence, it is the jury who is listening to how those words are being said,” Haynes said. “They’re listening to the tone that was used in saying those words. They’re listening to the inflection. They are able to judge who the speaker was and what effect those words had on the person that it was being said to, and the appellate court is missing all of that. They are reading a cold, written record.”Stephen Bright, President and Senior Counsel for the Southern Center for Human Rights, is even more pointed:
They parsed away, as only good and dedicated lawyers can do, to isolate "boy" from history, context and the chicken processing plant where the slur was used. The issue, they explained, was not whether the term was offensive to the two black men who were called "boy," but what was in the white plant manager's mind in using the word in addressing them. From the cold record, the appellate judges discerned that the manager's use of "boy" was only "conversational," "ambiguous stray remarks."This is a bit over the top. To me it resembles the regrettable attacks on Prop 8 Judge Vaughn Walker for his rumored sexual orientation.
Moreover, addressing the black men as "boy" was not done in the "context of decisions at issue." In other words, employers can refer the black men who work for them as "boy" so long as they do not use the word during a promotion or hiring decision. And, remarkably, the panel decided that it did not need to be slapped in the face to conclude that the evidence of comparative qualifications did not establish discrimination. The court actually did not need a standard at all. Ash v. Tyson Foods, 190 Fed. App'x 924, 926, 2006 U.S. App. LEXIS 19750 (11th Cir. 2006). In short, it parsed its way right around the Supreme Court's opinion as if it were nothing more than a small speed bump on the road to getting back to its original result.
In last week's opinion, Carnes and Pryor even had the arrogance to chastise the lawyer for the plaintiff for trying to elicit testimony comparing the use of "boy" to the racial slur "nigger." Carnes and Pryor found it "highly improper" to inject such an "emotionally charged" word into a trial, even as they played down the emotional charge of the word "boy." These two white judges, residing in their judicial palaces as far away from the lives of ordinary people as one can get, purport to know more about what it means when a white overseer calls an African-American man "boy" than 24 Alabamians selected for two federal juries.
Alabama juries are not known for being generous in employment discrimination cases—or any other kind of discrimination cases. But Carnes and Pryor—and many of their colleagues—do not see the federal courts as a place where businesses like Tyson Foods must answer for their discrimination against black people in promoting employees.
Mercifully, Judges Elbert Tuttle, Frank Johnson and John Minor Wisdom and many—although not all—of the other great members of the 11th and former 5th Circuit who did so much to advance civil rights are not alive to see this sad, sad day.
This march back to Jim Crow would surely be more difficult if there were more people of color on the federal bench. About a quarter of the population of three states that make up the 11th Circuit is made up of African Americans and Hispanics. Yet there have been only two black judges on the 12-member 11th Circuit in its history, and they have served one at a time. There is only one active African-American federal judge in all of Georgia today, Judge W. Louis Sands in the Middle District. The Northern District of Georgia, which includes Atlanta and has three African Americans representing it in Congress, has no African American judges in active status at this time.
On the other hand, I've never really given any thought to the question of diversity on the 11th Circuit.
What do you all think?