Recently the 5th Circuit Court of Appeals reversed a decision dismissing an employee’s lawsuit on discrimination for lack of evidence. In this case of Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 547 Fed. App. 484 (5th Cir. 2015) the 5th Cir held that evidence a decision-making supervisor’s comment to an employee seeking promotion that “dark skin black persons” were not permitted to handle money at the casino, and that the employee “was too black to do various tasks at the casino,” constituted direct evidence of discrimination and that a Jury not a Judge should decide if this is discrimination. The dismissing of cases by Federal Judges has become a real problem in El Paso Texas by some Federal Judges. This is because in the past the 5th Cir Court of Appeals (the Federal Appellate Court over Texas – and specifically El Paso, Texas) has allowed District Judges to basically substitute their opinions about what is discrimination as opposed to allowing a Jury decide these issues. This is a complicated issue because District Court Judges are charged with the responsibility to make sure there is sufficient evidence of discrimination before a case goes to a jury. But sufficient evidence does not mean that the District Judges should allow his or her opinion of the facts be the deciding factor. This case is a welcome relief because the Court has basically said that these statements alone are sufficient to allow the case to go to the jury and the District Court Judge was wrong in dismissing this case. The matter is more complicated because cases can be submitted to a jury based upon either direct evidence or indirect evidence (know as circumstantial evidence). In other words if you are fired and there is no reason given or a bogus reason that is given and you are then replaced by someone who is outside your protected class (age, race, color, etc.) then you may be able to prove your case on this alone. However it is usually better to have direct evidence of discrimination because then you don’t have to prove that you were replaced by someone of a younger age, different race or origin etc. In 1991 discriminated employees were given by Congress the right of a trial by jury – unfortunantly some District and Appelate Courts have been trying to take away this promised rights.