"The Supreme Court on employment cases has not followed the stereotypical conservative (and) liberal lines," says Tyler Brown, managing partner in the Washington, D.C., region for employment law firm Jackson Lewis. "They have done a fairly bipartisan job of calling things as they see them."
The first case dealt with a racial discrimination matter. In its ruling, the high court demonstrated that it knows what it doesn’t like when it comes to defining employment discrimination. But the justices declined to provide a clearer statement of what the standard should be.
On February 21, the Supreme Court vacated a ruling by the 11th Circuit Court of Appeals in Atlanta that had rejected a lawsuit brought by two African-American men against Tyson Foods. The plaintiffs, Anthony Ash and John Hithon, alleged that Tyson passed them over for promotion because of their race, elevating instead less qualified white men.
The Supreme Court disagreed with the standard the appeals court used to determine that the plaintiffs had insufficient evidence. A discriminatory-hiring decision can be proved by comparing candidates’ backgrounds only when "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face, " the appeals court stated.
The Supreme Court wrote that the language was "unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications."
"It suffices to say here that some formulation other than the test the Court of Appeals articulated in this case would better ensure that trial courts reach consistent results," the court wrote.
The ruling was a setback for employers, according to a lawyer who represents them in discrimination cases in the lower court’s region. "From a defense standpoint, that was the best phraseology out there," says Glenn Patton, a partner at Alston & Bird in Atlanta.
Although the Supreme Court found that the 11th Circuit had erred, the justices missed an opportunity to define how big the difference in qualifications must be to support a discrimination suit, according to an expert.
"I wish they had given at least some guidance to the lower courts on what the standard is," says Charles Craver, the Freda H. Alverson professor of law at George Washington University. "Now employers are going to have to act at their peril with respect to knowing exactly when you think someone is more qualified and whether that will be enough to defend a discrimination case."
In another recent unanimous decision, the Supreme Court rejected a lower court’s decision to throw out a case that was won by a former waitress who alleged that she was sexually harassed while working at a New Orleans restaurant.
The restaurant asserted, following the verdict, that it had fewer than 15 employees and so did not qualify as an employer under Title VII of the Civil Rights Act of 1964. The appellate court agreed and nullified the jury’s decision.
But the Supreme Court said the motion was made too late and that the definition of an employer is related to the plaintiff’s claim, rather than being a jurisdictional matter.