Fifth Circuit Finds That a “Fried Chicken” Joke Was Racist

The Fifth Circuit's decision in Autry v. Fort Bend Independent School District, No. 11-20639 (5th Cir. Jan. 7, 2013), raised eyebrows for reasons that had nothing to do with its ultimate outcome.  The plaintiff (who is black) claimed that he was denied a promotion due to racial discrimination.  The School District acknowledged that it hired a white employee from outside of the district to fill the position to which the plaintiff was seeking to be promoted.  However, the School District produced extensive evidence showing that it conducted a race-neutral evaluation of the various applicants and concluded that the white applicant had the best overall qualifications.  The district court found that the plaintiff had failed to produce evidence that this decision was pretextual.  The Fifth Circuit agreed and affirmed the dismissal of the case.

The controversial aspect of the case came from certain comments made by the district court at a hearing.  As part of his effort to establish pretext, the plaintiff pointed to a racist joke made during the hiring process.  The district court's response was remarkable:

Autry also testified that shortly after his October 2008 job interview, Mario Carrera — one of the committee members present at the interview — told Autry that Johnson had said that “[i]f President Obama’s elected, they’re going to have to take the Statute of Liberty and put a piece of fried chicken in his [sic] hand.” While FBISD challenged the statement as rank hearsay, the district judge rejected it as political, observing that “no black individually and no blacks collectively owns [sic] the sensitivity rights to fried chicken or anything else.”

The district court did not stop at that:

When Autry’s lawyer tentatively suggested that Johnson’s alleged reference to fried chicken was “a long-standing racial slur,” the district judge rejoined that “[t]hat’s really surprising to Colonel Sanders.”

The district court not only dismissed the case but also ordered the plaintiff to pay the defendant's attorneys' fees, finding that the case was "frivolous, unreasonable, and groundless."

The Fifth Circuit agreed that the racist joke was insufficient to establish pretext, but rejected the district court's inappropriate comments about the joke: "The district judge’s comment misses the mark, as it overlooks the racial component of Johnson’s alleged statement."  Perhaps most significantly, the Fifth Circuit not only quoted the district court's comments, but published its opinion (which is highly unusual for a routine discrimination case such as this one).  The Fifth Circuit also found that the district court abused its discretion in awarding attorneys' fees against the plaintiff.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes

 

 

 

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