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The United States Supreme Court recently clarified a plaintiff's burden in establishing race discrimination under Title VII and 42 U.S.C. § 1981. In Ash v. Tyson Foods, Inc., the Supreme Court considered, and rejected, the Eleventh Circuit Court of Appeals' new qualifications standard, which would have required the plaintiff in a failure to promote case to establish that he or she was far superior to the successful candidate. Of particular interest in the Supreme Court's decision was its rejection of the Eleventh Circuit's suggestion that disparity of qualifications need be "so apparent as to virtually jump off the page and slap you in the face," and its finding that the use of the word "boy" could evidence discriminatory intent.

Tyson promoted two white employees to the position of shift manager, passing over two African-American internal applicants. The African-American employees sued in the Northern District of Alabama alleging race discrimination. At trial, evidence was presented that the plant manager responsible for the disputed hiring decisions had referred to each of the petitioners as "boy" on previous occasions, and that their qualifications were superior to those of the successful applicants. The Eleventh Circuit Court of Appeals held that in order for the plaintiffs to show that the company's decision was pretexual, they must demonstrate that the disparity of qualifications is "so apparent as virtually to jump off the page and slap you in the face."

The Supreme Court found that the Eleventh Circuit's "jump off the page and slap you in the face" visual image was "unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications." The Court declined to define a more precise standard or to rule on the plaintiffs' evidence in the case, but rather stated that "some formulation other than the test the Court of Appeals articulated in this case would better ensure that trial courts reach consistent results."

The Supreme Court also held that the Eleventh Circuit erred in holding that the use of a word like "boy," by itself, does not evidence discriminatory intent. The Court noted that a speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage. While acknowledging that use of a word such as "boy" will not always be evidence of racial animus, the Court reasoned that it is not necessarily true that the term, standing alone, is always benign.

The Supreme Court's rejection of the Eleventh Circuit's proposed qualifications standard makes it easier for plaintiffs to support their claims. This case serves as a reminder that courts may require an employer to show objectively why the successful candidate was indeed more qualified — something which is not always an easy task if more than one candidate is minimally qualified.