The Demise of the "Slap In the Face" Test: A Profound Change In Assessing Pretext Or Merely A Matter of Semantics?

Robert K. Robinson
Walter D. Davis
Geralyn Mcclure Franklin
Nicole Forbes Stowell

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DOI: 10.2190/IE.12.3.e

Abstract

In 2004 the Journal of Individual Employment Rights published an article about the "slap-in-the-face" standard for ascertaining employer pretext in disparate treatment cases arising under Title VII of the Civil Rights Act of 1964. In 2006, the Supreme Court of the United States explicitly declared that standard to be impermissible. This paper discusses the changes imposed by the Supreme Court's decision in Ash v. Tyson Foods and its implications for employers. The Court's decision may have a greater impact on the language used in analyzing pretext than it does on the process used by the courts to determine whether the complaining party has shown there are disparities in qualifications. This article examines the implications of the latest ruling for employer responsibilities during the selection process.

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