Supreme Court Rejects Popular Standard Regarding Comparative Evidence of Discrimination
By Allan S. Bloom and JoAnn Nelson
The United States Supreme Court last week rejected a legal standard frequently relied upon by employers defending against failure to hire and failure to promote claims. In many, if not most, cases of this sort, employers defend their actions by noting the superior qualifications of the selected candidate. The courts of appeals have generally set a high bar for plaintiffs in such cases, often holding that, to raise an inference of bias, disparities in qualifications must weigh so dramatically in the plaintiff’s favor as to “jump off the page and slap you in the face.” In rejecting this colorful formulation of the legal standard, the Supreme Court’s February 21, 2006 per curiam opinion, in Ash v. Tyson Foods, Inc., did not provide an alternative standard for use in every case. The opinion did,however, cite with approval other formulations of the comparative standard...