- M. Lee Smith Publishers

<p>After several years of employees being required to meet a very high standard to have their cases heard by a jury, that may be changing in the long term. The U.S. Supreme Court recently cautioned federal judges to be careful in the rules of evidence and legal standards for employment discrimination. The Court's opinion offers employers guidance on the amount of evidence needed to prove racial bias and pretextual reasons for decisions.</p>

<p>The case, <i>Ash v. Tyson Foods, Inc.,</i> involved two African-American employees passed over for promotion in favor of two Caucasian employees. Part of their proof of racial bias was evidence that the manager who made the promotion decision had referred to them as "boy." The Eleventh U.S. Circuit Court of Appeals rejected their argument, saying that use of the word "boy" by itself, with no racial adjectives modifying it, wasn't evidence of discriminatory intent.</p>

<p>The Supreme Court disagreed, rejecting the appeals court's all-or-nothing approach and saying that discriminatory meaning can depend on "context, inflection, tone of voice, local custom, and historical usage."</p>

<p>The high court also held that the appeals court used the wrong standard in determining whether Tyson's reasons for promoting the white candidates were pretextual. The African-American employees had tried to prove pretext by asserting that their qualifications were superior to those of the Caucasian employees.</p>

<p>To prove pretext, the appeals court said, the difference in qualifications had to be "so apparent as to virtually jump off the page and slap you in the face." That vivid image apparently didn't appeal to the nine justices, who called it "unhelpful and imprecise." The Supreme Court declined to define the proper standard and sent the case back to the court of appeals for reconsideration in light of its opinion.</p>

<p>What does this mean to you? While the Court's opinion in this case isn't a watershed moment in employment law, it may be a subtle signal that in the long term, more of these kinds of cases will end up in front of a jury.</p>

<p>One of the biggest obstacles you face is getting your managers and supervisors to understand that comments they think are innocent or made in casual banter may sound very different in front of a judge or jury. Train your supervisors and managers so that they know that their off-the-cuff remarks -- even those that don't explicitly mention race, sex, or other legally protected classifications -- can and will come back to bite them. A word like "boy," associated with past times of race discrimination, can be legitimate evidence of racial bias even when it's not coupled with a racial identifier.</p>

<p>In addition, make sure you protect against charges of pretext by documenting your sound business reasons for employment decisions. Be as objective as possible when describing requirements for hiring, promotions, firing, and layoffs.</p>

<p>Subjective criteria can be used, too, but make sure you describe them as objectively as possible. For example, two people with identical credentials, education, and experience applied for a job but one did better than the other in the interview. Explain in objective terms, such as "she answered questions well" or "he was uncomfortable or evasive about answering questions," to describe what your decision was based on.</p>

<p>The more precisely you can explain how you made your decision, the easier it will be to defend if you're sued later.</p>

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<p>Copyright © M. Lee Smith Publishers LLC. This article is intended for general information and should not be construed as legal advice or opinion. Readers in need of legal advice should retain the services of competent counsel.</p>