In a recent employment related decision, the U.S. Supreme Court overruled a decision by the Eleventh Circuit Court of Appeals involving a race discrimination case where the plant manager's use of the term "boy" was a featured part of the employee-plaintiffs' case.

In this case, two African-American employees sued Tyson Foods for race discrimination after they were passed over for promotions. In support of their discrimination claims, the employees presented evidence that the white supervisor who made the promotion decisions referred to each of them on several occasions as "boy." The Eleventh Circuit concluded that the use of the term "boy" alone, without racial modifiers, is not evidence of discrimination. The U.S. Supreme Court, in Ash v. Tyson Foods, Inc., decided February 21, 2006, reached a different conclusion, ruling unanimously that the term could in fact be evidence of discrimination.

"White boy" or "black boy" is one thing, reasoned the Eleventh Circuit. But the use of the word "boy" alone, it figured, says little, if anything, about the prejudicial intent of the speaker.

The Supreme Court observed, however, that modifiers like "white" and "black" are not the only ways in which use of the word "boy" can evidence discrimination. Evidence in a lawsuit can include more than just the spoken word. In cases such as this, evidence can include testimony about how the word was used or how the word was intended to be used.

The Supreme Court made it clear that when trying to understand the speaker's intent, it is important to look at "various factors including context, inflection, tone of voice, local custom, and historical usage." Thus, the use of the word "boy" alone may be acceptable in some situations but not others.

What does this mean for Employers?

In view of the Supreme Court's decision in Ash, courts will be more hesitant to establish bright line rules with respect to the intent to be inferred from the use of words like "boy" in the workplace. This does not mean that in all cases where a supervisor uses the word "boy" the case is destined for a jury trial. However, it does mean that the courts will be more likely to scrutinize the contextual evidence surrounding the use of a potentially offensive word before deciding whether to dismiss the claim for insufficient evidence of discriminatory intent.

Employers should be sensitive to word play in the workplace and proactive in addressing it. Clearly, the meanings of words are contextual and are not always as they may seem. The Ash decision demonstrates the importance of training managers and supervisors to be aware that even comments that they may not view as offensive or discriminatory may be viewed in that way by their employees, and ultimately a jury.

This Newsletter is designed to provide information of a general nature only and is not intended to replace or provide professional legal advice.