Eleventh Cir. OKs Tyson Foods Racial Discrimination Lawsuit

By Robyn Hagan Cain on January 12, 2012 | Last updated on March 21, 2019

Ash v. Tyson Foods, a racial discrimination lawsuit, has been toiling in federal courts for over a decade. The Eleventh Circuit Court of Appeals has considered the case four times. The Supreme Court has heard the case. So why has this case demanded so much judicial attention for so long?

In part, because the courts could not agree on whether the word “boy,” when applied to an adult, African-American man, qualified as a racial epithet.

Plaintiff John Hithon, who is African-American, started working at a Tyson chicken plant in Gadsden, Ala. in 1982. He worked his way up from chicken hanger to shift superintendent. In 1995, Hithon applied to be a shift manager, one of the highest positions in the plant. The Gadsden plant had never had an African-American plant manager or shift manager, but five of the six superintendents there were African-American.

Instead of promoting African-American superintendents into two vacated shift manager positions, Tom Hatley, the Gadsden plant manager, hired two white employees from other Tyson chicken plants via transfer. Hithon claimed that the African-American candidates were more qualified than at least one of the white hires, and brought a racial discrimination lawsuit against Tyson. A jury found in favor of Hithon, and awarded damages, but the district court granted Tyson's Rule 50 motion for judgment as a matter of law.

Hithon and another claimant, Anthony Ash, claimed that Tyson's reasons for hiring the white shift managers were pretextual. They further alleged that Hatley treated African-American employees differently, referring to African-American men as "boy" or "boys," both of which are considered racist relics in the South.

Thus the epic appellate battle began.

In 2005, the Eleventh Circuit Court of Appeals refused to agree that addressing an African-American adult male as "boy" was racist; the court claimed that a race-based modifier, (e.g., black, white), was needed to evidence discriminatory intent. The following year, the Supreme Court said that the circuit's decision was "erroneous," and remanded the case.

In 2010, the Eleventh Circuit once again ruled for Tyson, finding, "the use of 'boy' by Hatley was not sufficient, either alone or with the other evidence, to provide a basis for a jury reasonably to find that Tyson's stated reasons for not promoting the plaintiffs was racial discrimination. The usages were conversational and as found by the district court were non-racial in context."

Last month, the Eleventh Circuit Court of Appeals reversed course, and found that the cumulative evidence could support the jury verdict. (Lest you think that the Eleventh Circuit has finally realized that "boy" can be a racial epithet, keep in mind that the court specifically pointed to the "cumulative evidence.")

If you represent a plaintiff who is bringing a similar racial discrimination lawsuit, keep in mind that the Eleventh Circuit will look for cumulative evidence of discrimination, particularly in the absence of a court-recognized epithet.

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