Judicial Diversity

For the second time a federal appeals court panel rejected jury awards in favor of African-American plaintiffs who alleged discrimination against the poultry company Tyson. In a 2-1 decision, the U.S. Court of Appeals for the Eleventh Circuit found that a Tyson manager's use of the word "boy" to address a black man, John Hithon, did not amount to evidence of racial discrimination.

Hithon denied a promotion at the Gadsden, Ala., poultry plant, argued that manager Tom Hatley had discriminated against him, citing, among other things, Hatley's derogatory usage of "boy." In 2002, Hithon and other employees of the plant lodged a lawsuit alleging racial discrimination and a jury found in their favor awarding hundreds of thousands in compensatory damages and $1.5 million in punitive damages. A federal magistrate judge invalidated the jury's verdict maintaining that racial discrimination was not proved, and in 2005 a panel of the Eleventh Circuit upheld that ruling. But the U.S. Supreme Court heard an appeal of the case and found that the use of the word boy could prove racial bias. "The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage," the high court ruled in remanding the case to the Eleventh Circuit. The remand also produced another jury trial, which again found in favor of Hithon and the other black employee, Anthony Ash.

But the Eleventh Circuit, in its recent ruling (pdf) in Ash v. Tyson Foods, Inc., refused to budge from its earlier decision, concluding that there was not new evidence to show the use of the word was discriminatory, Law.Com reported. But U.S. District Senior Judge David D. Dowd Jr., appointed to the bench by President Reagan, in a dissent said the jury verdicts should have been upheld.

In a column for Daily Report, Stephen B. Bright, president and senior counsel of the Southern Center for Human Rights, wrote that the latest decision is a troubling reminder of the need for diversity on the Eleventh Circuit.

Bright wrote:

These two white judges [referring to Eleventh Circuit Judges Edward E. Carnes and William H. Pryor, Jr., of the majority in Ash], residing in their judicial palaces as far away from the lives of ordinary people as one can get, purport to know more about what it means when a white overseer calls an African-American man ‘boy' than 24 Alabamians selected for two federal juries.

...

This march back to Jim Crow would surely be more difficult if there were more people of color on the federal bench. About a quarter of the population of three states that make up the 11th Circuit is made up of African Americans and Hispanics. Yet there have been only two black judges on the 12-member 11th Circuit in its history, and they have served one at a time. There is only one active African-American federal judge in all of Georgia today, Judge W. Louis Sands in the Middle District. The Northern District of Georgia, which includes Atlanta and has three African Americans representing it in Congress, has no African American judges in active status at this time.

 

Writing for The Root, Professor Sherrilyn Ifill takes issue with an op-ed by Judge J. Harvie Wilkinson III, published in The Washington Post earlier this year. Ifill, a University of Maryland law school professor, describes the piece as "a stunning breach of manners and an embarrassing display of unwarranted hysteria about what Wilkinson described as rumors of a political 'takeover' of the 4th Circuit."

In his piece, Judge Wilkinson, former chief judge of the U.S. Court of Appeals for the Fourth Circuit, wrote that "the U.S. Court of Appeals for the 4th Circuit is set for a takeover," at the hands of President Obama. 

"Popular commentary has it that the court, on which I serve, is a fortress or bastion or citadel of conservatism," Wilkinson stated. "Discussion of coming changes suggests more the fruits of a successful military campaign than the result of an election giving our new president the right to nominate members to a judicial body."

Ifill replies: