In its 2006 opinion in Ash v. Tyson Foods Inc., the U.S. Supreme Court found two errors of law in the 11th Circuit’s opinion that was then under review. In doing so, the Supreme Court made some significant statements about the standard for finding pretext in employment discrimination claims, and whether calling an African-American man “boy” can be racially offensive. The ongoing resolution of Ash has been a closely watched case by many practitioners, and the 11th U.S. Circuit Court of Appeals has potentially concluded it with a surprising opinion last month in Ash v. Tyson Foods Inc. (Ash IV) .
The surprise is not necessarily about the results of the decision, but in the way the circuit judges avoided discussing the issues addressed by the Supreme Court. The opinion indicates that it took the Supreme Court’s instructions into account, yet it still came to the same conclusion. In doing so there was little explanation of how it incorporated the Supreme Court’s concerns.
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