Verbal abuse: Supreme Court slaps down discriminatory standard.

• Author: Masinter, Eve B.

IADC member Eve B. Masinter is a partner at McGlinchey Stafford, PLLC, in New Orleans, Louisiana. Thomas L. Watson is an associate at the same firm. They both specialize in employment litigation. This article, which originally appeared in the August, 2006 Employment Law Committee newsletter, discusses the "jump off and slap you" standard.

Attorneys often grapple with nebulous legal concepts handed down by courts. While one might, for example, know when the facts require the "rational basis test" as opposed to "strict scrutiny," it is often difficult to articulate a case that would be decided differently depending on which test applies. Likewise, it often seems odd when courts invoke the phrase "totality of the circumstances," as if at times the facts might require application of a "partiality of the circumstances" standard, in which a court comes to its conclusion by disregarding pertinent evidence.

Not all courts, however, come up with standards that involve sliding scales, shifting burdens, or reasonably prudent people. This is the story of one circuit that sought to formulate a test that was instinctive and instructive. The circuit applied the test, often known as the "jump off and slap you" test, in Title VII promotion and failure to hire cases, holding that a plaintiff can prove pretext based solely on a disparity in qualifications only if such a disparity was so apparent that it could be said to "jump off the page and slap you in the face." The "jump off and slap you" test caught on nationwide and was used by courts from Denver to Puerto Rico for more than a decade, before the Supreme Court, like a parent with petulant children misbehaving, upbraided the courts for such language and sent them to time-out to figure out a less violent and more dignified standard.

Origin of the Standard

The "jump off and slap you" standard appears to have been the brainchild of Fifth Circuit Judge Jacques Loeb Wiener, Jr. The first known sighting of this standard is in Judge Wiener's opinion in Odom v. Frank, 3 F.3d 839 (5th Cir. 1993). In Odom, The Postmaster General (Frank) sought appellate review of an order of the district court, which found that defendant discriminated against plaintiff on the basis of his race and age in his bid for a promotion. The district court held that the proffered explanation for the denial of the position was a pretext for the Postmaster's discriminatory actions. The Fifth Circuit reversed and held that plaintiff failed to produce sufficient evidence to prove that the reasons given by the Postmaster for not promoting plaintiff were a pretextual smokescreen masking racial or age-based discrimination. The plaintiff in Odom did not possess a higher degree of experience or education than the successful applicant. The court also found that there was no statistical data which indicated that the Postmaster had, in the past, excluded blacks and persons over the age of 40 from selection for higher level positions.

Generally, a court's belief that an unprotected applicant who has been promoted is less qualified than a protected applicant who has been passed over, will not in and of itself support a finding of pretext for discrimination. If, however, the passed over applicant who is protected against discrimination is clearly better qualified for the position in question, a finding of pretext masking discrimination can be supported by the promotion of the less qualified person. Id. at 845.

In making a comparison, the court placed the qualifications of the plaintiff and the hired applicant side by side. The hired applicant had significant recent experience in several areas that were more relevant to the new position. Plaintiff's prior experience was primarily irrelevant to the new position. Further, testimony of review panel members indicated that experience was legitimately relevant and significant to the panel's determination. The Fifth Circuit held that, at best, there was no "glaring distinction that would support a finding that...