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Case:

Hithon v. Tyson Foods, Inc.

10/18/10
Economic Justice | Employment Discrimination

John Hithon worked at a Tyson Foods plant in Gadsden, Alabama for 13 years. Despite his experience, when two supervisor jobs opened up at his plant he was passed over, remaining stuck in lower management. Instead, two white men from other plants were hired. Hithon believed his supervisor’s failure to promote him resulted from racial prejudice and filed an employment discrimination claim against Tyson Foods, Inc. in 1996. Part of the evidence backing Hithon’s claim was testimony confirming his white boss’s habit of referring to him, an African-American man, using the derogatory term “boy.” 

Hithon’s claims were first heard in an Alabama court in 2002 where the jury, familiar with local customs and racial tensons, found in his favor, awarding Hithon $1 million dollars. Hithon’s employer appealed the jury’s verdict to the 11th Circuit Court of Appeals.  The appellate court ordered a retrial in 2005 based in part on its determination that an adult man being called “boy” alone was not discriminatory unless it was preceded by “black” or “white.” Hithon appealed to the Supreme Court, which unanimously reversed the 11th Circuit’s decision, citing context, local custom, and historical usage as evidence of the word being discriminatory.  Following the Supreme Court’s reversal, yet another Alabama jury ruled in Hithon’s favor in 2007, only to be overturned by the 11th Circuit in September 2010.  In that opinion, despite evidence that Hithon’s supervisor had used the word in “mean” and “extremely condescending” way, the 11th Circuit asserted that the slurs were "ambiguous stray remarks not uttered in the context of the decisions at issue."
 
LDF represents a number of notable civil rights leaders in our filing of a friend-of-the-court brief on Hithon’s behalf. These leaders include the Hon. U.W. Clemon, Alabama’s first black federal judge, former United Nations Ambassador and Congressman Andrew Young, Rev Joseph Lowery, and numerous other contemporaries of  Rev. Martin Luther King, Jr. each of whom is a storied civil rights activist in their own right.  All of the amici have heard the racially coded term “boy” directed toward themselves, members of their families and friends, or toward other ministers and pioneers of the Civil Rights Movement.  
 
Having been intimately involved with the defense of civil rights since our founding in 1940, LDF recognizes that it is imperative that the historical and contemporary understanding of the term “boy” be considered in the context of the complaint.  It is widely recognized in the that the use of the term “boy” to describe an African-American man is deeply offensive and reflects discriminatory intent. Judge Clemon, for example, has said that when used to describe an adult African American man, “boy” is akin to the n-word.
 
LDF’s brief draws upon historical instances of black men being called “boy” to insult and demean them. It also notes the term has been derogatorily used to refer to African-American men since the time of slavery.  Additionally, LDF asserts that it is very significant that two local, racially diverse juries found that Hithon’s employer had indeed discriminated against him. The 11th Circuit’s most recent decision warrants reexamination and en banc consideration because the question presented--one of racial discrimination--is of exceptional importance. Should the 11th Circuit’s decision stand, racial discrimination claims resting partly on the use of racial slurs in the workplace could seek refuge in the misguided appeals court ruling.
 
Photo courtesy Alex Wong/Getty Images
 
LDF’s co-counsel: Deborah Archer, Elise Boddie, of New York Law School and their students, and Alabama civil rights attorney, Mark Sabel, made invaluable contributions in this amicus effort. John Hithon worked at a Tyson Foods plant in Gadsden, Alabama for 13 years. Despite his experience, when two supervisor jobs opened up at his plant he was passed over, remaining stuck in lower management. Instead, two white men from other plants were hired. Hithon believed his supervisor’s failure to promote him resulted from racial prejudice and filed an employment discrimination claim against Tyson Foods, Inc. in 1996. Part of the evidence backing Hithon’s claim was testimony confirming his white boss’s habit of referring to him, an African-American man, using the derogatory term “boy.” 
 
Hithon’s claims were first heard in an Alabama court in 2002 where the jury, familiar with local customs and racial tensons, found in his favor, awarding Hithon $1 million dollars. Hithon’s employer appealed the jury’s verdict to the 11th Circuit Court of Appeals.  The appellate court ordered a retrial in 2005 based in part on its determination that an adult man being called “boy” alone was not discriminatory unless it was preceded by “black” or “white.” Hithon appealed to the Supreme Court, which unanimously reversed the 11th Circuit’s decision, citing context, local custom, and historical usage as evidence of the word being discriminatory.  Following the Supreme Court’s reversal, yet another Alabama jury ruled in Hithon’s favor in 2007, only to be overturned by the 11th Circuit in September 2010.  In that opinion, despite evidence that Hithon’s supervisor had used the word in “mean” and “extremely condescending” way, the 11th Circuit asserted that the slurs were"ambiguous stray remarks not uttered in the context of the decisions at issue."
 
LDF represents a number of notable civil rights leaders in our filing of a friend-of-the-court brief on Hithon’s behalf. These leaders include the Hon. U.W. Clemon, Alabama’s first black federal judge, former United Nations Ambassador and Congressman Andrew Young, Rev, and numerous other contemporaries of  Rev. Martin Luther King, Jr. each of whom is a storied civil rights activist in their own right.  All of the amici have heard the racially coded term “boy” directed toward themselves, members of their families and friends, or toward other ministers and pioneers of the Civil Rights Movement.  
 
Having been intimately involved with the defense of civil rights since our founding in 1940, LDF recognizes that it is imperative that the historical and contemporary understanding of the term “boy” be considered in the context of the complaint.  It is widely recognized in the that the use of the term “boy” to describe an African-American man is deeply offensive and reflects discriminatory intent. Judge Clemon, for example, has said that when used to describe an adult African American man, “boy” is akin to the n-word.
 
LDF’s brief draws upon historical instances of black men being called “boy” to insult and demean them. It also notes the term has been derogatorily used to refer to African-American men since the time of slavery.  Additionally, LDF asserts that it is very significant that two local, racially diverse juries found that Hithon’s employer had indeed discriminated against him. The 11th Circuit’s most recent decision warrants reexamination and en banc consideration because the question presented--one of racial discrimination--is of exceptional importance. Should the 11th Circuit’s decision stand, racial discrimination claims resting partly on the use of racial slurs in the workplace could seek refuge in the misguided appeals court ruling.
 
LDF’s co-counsel: Deborah Archer, Elise Boddie, of New York Law School and their students, and Alabama civil rights attorney, Mark Sabel, made invaluable contributions in this amicus effort.