I payoff on my bets! In a post last May, I argued that a Fourth Circuit panel in Jordan v. Alternative Resources Corp. had erroneously dismissed an employment discrimination claim. The case involved a situation where white workers watching a news account about the DC snipers had said, in front of an African-American employee, “they should put those two black monkeys in a cage with black apes and let the apes fuck them.” The court found that NO reasonable African-American man, having heard these comments at work, could ever have concluded he was experiencing a hostile environment.
I suggested that despite the conservative nature of the Fourth Circuit, this outcome was sufficiently problematic that the court would reverse en banc. MJ, in a comment, issued a bet that it would not reverse. He promised to post the lyrics to “I Was Wrong” by Social Distortion if the case was reversed. I responded that I would put up a post with the above title. Paul Gowder chimed in that he thought the case would not even be heard en banc.
Paul was right, and thus so was MJ. I was wrong. The Fourth Circuit declined to rehear the matter en banc, albeit in a 5-5 tie, with two judges recusing (Motz and Williams). Interestingly, one African-American judge, Allyson Duncan, voted to deny rehearing. Judge Wilkins – a very conservative South Carolinian – voted to rehear. I must admit, I’m not feeling much embarrassment. In my view, some folks on the Fourth Circuit should be.