Dazed and confused by the 5th U.S. Circuit Court of Appeals’ numerous, seemingly contradictory and opaque opinions on employment law? Is your bafflement increased by the welter of firm newsletters, e-mail alerts and commercial publications cascading into your inbox? It all looks about as organized as an orgy. Well, you are not alone; to borrow a phrase, “we feel your pain.” But there are underlying patterns to the apparent confusion, often driven by unseen dynamics. Tapping into them strengthens your hand – whether defending a discrimination suit, conducting requests for proposal for outside lawyers or counseling on employment issues with the boss.
A prime place to peer through the fog is the seemingly schizophrenic case law on so-called “smoking gun evidence.” Namely, comments showing corporate decision-makers don’t like an employee because of a protected characteristic. Here’s the main event: smoking gun evidence v. overwhelming evidence of nondiscriminatory reasons for your actions. And the winner of the bout by KO is overwhelming evidence. Just look at these 2000-2001 cases – with information and quotes from the various opinions – that never resulted in an employee victory: Auguster v. Vermilion Parish School Board, where the decision-maker who terminated an African-American teacher allegedly lamented his historic “bad luck” working with blacks; or Rubinstein v. Administrators of the Tulane Educational Fund, where the tenure committee members who denied tenure to Professor Asher Rubinstein (a Russian Jew) allegedly had talked about Jews being “thrifty” and if “a Russian Jew could get tenure, then anyone could”; or EEOC v. Texas Instruments, where managers, in a reduction in force case, allegedly said that a terminated employee’s age “got him” and that the company needed to make room for “younger people.”
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