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11th Circuit Court of Appeals Reverses Course in "boy" case

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Thursday, December 22, 2011

Last week, a panel of the 11th Circuit Court of Appeals reversed itself to reinstate a jury’s finding that John Hithon, an African-American worker at a Tyson Foods plant in Gadsden, Alabama, was discriminated against by his employer. This case began in 1996 when, Hithon’s supervisor twice passed him over for a promotion and instead hired two white men from other plants, despite Hithon’s thirteen years of service at the company.  Hithon claimed that his supervisor’s failure to promote him resulted from racial prejudice and filed an employment discrimination claim against Tyson Foods, Inc.. Part of the evidence backing Hithon’s claim was testimony that his white supervisor had referred to him as “boy.” 

In 2002 an Alabama jury, familiar with local customs and racial tensions, found in Hithon’s favor, awarding him $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 could not be considered discriminatory unless preceded by “black” or “white.” Hithon appealed to the Supreme Court, which unanimously reversed the 11th Circuit’s decision, observing that context, local custom, and historical usage need to be considered in such circumstances.  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 used the word in a “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.” In essence, the panel did not regard the use of “boy” to refer to an adult African-American male as discriminatory.

On behalf of a number of notable civil rights leaders LDF filed an amicus brief in support of Hithon’s petition for en banc rehearing of the panel’s decision.  Amici included the late Fred Shuttlesworth; the Hon. U.W. Clemon, Alabama’s first black federal judg;, 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.   Rev. Shuttleworth’s participation as amicus – just before his death in October 11 -- is a poignant reminder of the courageous stands he took throughout his life for the cause of equal opportunity and racial justice.  All of the amici attested to hearing 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.   LDF’s brief drew upon historical instances of black men being called “boy” to insult and demean them since the time of slavery.  

On December 16, 2011 the 11th Circuit panel reversed its prior ruling, reinstating the jury’s 2007 verdict that Tyson Foods unlawfully discriminated against Hithon. In its opinion, the panel not only referenced LDF’s brief, but also reversed its position on the use of the word “boy” in this case, noting that given the context, the jury could reasonably conclude that Hithon’s supervisor used “boy” in a “racially demeaning way.”  This decision marks the end of a long journey for John Hithon and a measure of justice too long delayed.