Pretext without context.

• Author: Greene, D. Wendy
• Position: Response to article by Natasha T. Martin in this issue, p. 313

1. INTRODUCTION

   In Pretext in Peril, Professor Martin examines the interplay between procedural and substantive law in disparate treatment cases in which plaintiffs offer circumstantial evidence--evidence of pretext--as opposed to direct evidence (2) to maintain their employment discrimination claims. Pretext constitutes an evidentiary showing that the defendant's asserted reason for an adverse employment action that the plaintiff suffered is not the real reason or that an impermissible classification like race more likely than not motivated the adverse employment action. (3) Professor Martin argues that through the confluence of substantive and procedural law a plaintiff's evidence of pretext has become "hollow and forceless in evidentiary value." (4) With precision, Professor Martin critiques courts' use of "evidentiary-dilution devices," (5) making evidence of pretext devoid of discriminatory or prejudicial content. She also shows how courts employ "procedural reinforcement," (6) which results in the overwhelming grant of employers' motions to dismiss, motions for summary judgment, and judgments notwithstanding the verdict. In turn, courts' application of "evidentiary-dilution devices" and procedure impedes the viability of disparate treatment cases and the ability of plaintiffs to redress discrimination in the contemporary workplace.

   According to Professor Martin, one "evidentiary-dilution device" courts advance is an interpretation of pretextual evidence that "leav[es] the meaning of pretext indeterminate and meaningless" (7) and "severely undercut[s] plaintiffs' efforts to prove discriminatory bias." (8) Consequently, this response to Professor Martin's article addresses such an "evidentiary-dilution device" utilized by courts in race discrimination cases at both post-trial and pre-trial phases. Namely, this response places under scrutiny courts' acontextual, colorblind analyses of pretextual evidence offered by plaintiffs to demonstrate that they suffered an adverse employment action because of their race. In doing so, this response focuses on two disparate treatment cases originating in Alabama, where the plaintiffs, African American men, were addressed as "boy" by their white male supervisors. In both cases, the plaintiffs presented this highly emotive term as circumstantial evidence supporting their claims of race discrimination.

   First, this response addresses the lower courts' opinions in Ash v. Tyson Foods, Inc., (9) as well as the Supreme Court's per curiam opinion in this case, (10) which espouses a more contextualized analysis of pretext in race-based disparate treatment cases. Next, this response examines Holiness v. Moore-Handley, Inc. (11) and the acontextual, colorblind analysis the court applied. Each case illustrates the negative effects of courts analyzing pretext without context at different stages of race discrimination litigation: during post-trial phases in Ash v. Tyson Foods, Inc. and at the summary judgment stage in Holiness v. Moore-Handley, Inc. Ash v. Tyson Foods, Inc. and Holiness v. Moore-Handley, Inc. reveal judicial nullification of the jury's role and provide an opportunity to show the importance of contextualizing facts in race discrimination cases. I argue that judges should not eliminate this jury function summarily in disparate treatment cases; moreover, courts must apply a more nuanced methodology to these claims. (12) Accordingly, I proffer a more contextualized approach to the Holiness case that considers historical and contemporary race and gender relations in the United States and their manifestations in the workplace. Finally, this response briefly considers transformations of jurisprudential methodology needed in disparate treatment cases to redress the subtleties of racial inequality and stigmatization and thus unlawful race discrimination in the contemporary workplace.

2. ASH V. TYSON FOODS, INC. : A CALL FOR CONTEXT

   In Ash v. Tyson Foods, Inc., Anthony Ash and John Hithon claimed that they were denied promotions to shift manager at the Tyson Foods plant in Gadsden, Alabama. (13) They filed suit against Tyson Foods, alleging violations of Title VII of the Civil Rights Act of 1964 (14) and Section 1981 of the Civil Rights Act of 1866. (15) Like most disparate treatment cases, Ash's and Hithon's Title VII and Section 1981 claims were not supported by "direct evidence" that they were denied promotions because of their race. (16) Therefore, during the pre-trial phase, the facts of the case were analyzed pursuant to the McDonnell Douglas (17) burden-shifting framework. (18) In the failure-to-promote context, "a [plaintiff's] prima facie case is ordinarily established by proof that the employer, after having rejected the plaintiff's application for a ... promotion, continued to seek applicants with qualifications similar to the plaintiff's." (19) Establishing a prima facie case essentially raises a presumption that the adverse employment action occurred because of the plaintiffs race, color, national origin, sex, or religion. (20)

   In response to the plaintiffs prima facie case, the employer must articulate a "legitimate, nondiscriminatory reason[]" for its adverse employment action. (21) Once the employer has satisfied its burden, the plaintiff must then produce evidence showing that the employer's asserted reason is pretextual that the asserted reason is false or that race, color, national origin, religion, or sex more likely than not motivated the adverse employment action. (22) The plaintiffs in Ash v. Tyson Foods, Inc. survived the summary judgment stage, and at trial the plaintiffs presented numerous arguments (23) to challenge the veracity of Tyson Foods' asserted reasons (24) for not promoting Ash and Hithon. To further support their claims that they were denied promotions because they were Black (25)--and specifically because they were Black men the plaintiffs presented undisputed evidence: white men were selected for the managerial positions; (26) no Black employee had ever served as a shift manager at the Gadsen plant; (27) and Hatley called both plaintiffs "boy" several times. (28)

   According to Mr. Ash, on one occasion Mr. Hatley called him "boy" in front of his wife, (29) and, when Ash's wife retorted that "her husband was an adult," Hatley responded by laughing. (30) At trial, Mr. Hithon testified that he perceived the appellation, as spoken by Hatley, to implicate his race and gender. Hithon explained that "[b]oy ... is a term that was used back during slavery times to describe a black male." (31) Significantly, at trial, Tyson Foods' counsel even admitted that, based on his experience growing up in Anniston, Alabama, during the 1950s, addressing a Black man as "boy" was "fighting words." (32) According to defense counsel, Hatley calling Ash and Hithon "boy" was a "mean thing to say" and indefensible. (33) Moreover, defense counsel addressed the tone in which the witnesses testified that Hatley called them "boy." He acknowledged that, "[had] Hatley stated it the way it was said on [the] witness stand by [those] witnesses, you know, back when I was growing up, there would probably be a little trouble." (34) The plaintiffs' evidence persuaded a jury that they were denied promotions because of their race; a jury found in their favor on their Title VII and Section 1981 claims not once but twice. (35) Following the first trial, Tyson Foods sought a judgment as a matter of law on the plaintiffs' claims of discrimination, including both compensatory and punitive damages, pursuant to Federal Rule of Civil Procedure 50. (36)

   In deciding whether the use of "boy" was sufficiently probative evidence of race discrimination, the district court held that "even if Hatley had made these statements, it cannot be found, without more, that they were racial in nature." (37) Notably, the court did not explain what "more" the plaintiffs needed to offer for the word "boy" to be deemed "racial in nature," though the district court implied that Hatley addressing the men as "boy" could have been viewed as a racial insult if Ash and Hithon would have complained. (38) The district court granted Tyson Foods' motion for judgment as a matter of law and, in the alternative, ordered a new trial. (39) Plaintiffs Ash and Hithon appealed the district court's dismissal to the Court of Appeals for the Eleventh Circuit. (40) The Eleventh Circuit, however, adopted an extreme stance concerning the evidentiary value of the word "boy" in race discrimination cases. According to the Eleventh Circuit, an accompanying racial classification or modifier, like "[B]lack" or "white," was needed for the word "boy" to suffice as evidence of race discrimination. (41) Thereby, the court foreclosed the word's probative value in disparate treatment race cases analyzed pursuant to the McDonnell Douglas framework.

   The United States Supreme Court granted certiorari to address the Eleventh Circuit's holding, (42) and, in a per curium opinion, the Court held that a racial modifier is not necessary for a word like "boy" to be deemed probative evidence of race discrimination. (43) The Court acknowledged that, in Title VII and Section 1981 race cases, courts must analyze a word's intended or conveyed meaning within context to ascertain whether adverse employment actions were based on an employee's race. (44) The Supreme Court enumerated five non-exclusive factors that courts should assess in determining the speaker's meaning of a "disputed word": "context, inflection, tone of voice, local custom, and historical usage." (45) On remand, rather than examine these factors with respect to the label "boy," the Eleventh Circuit invoked an "evidentiary dilution device": the "stray remarks" doctrine. (46) In so doing, the Eleventh Circuit maintained a colorblind, non-discriminatory, and harmless view of the word "boy" and preserved its previous position that "boy" articulated in any context is insufficient to...