The majority thus ignores Robinson and resorts to its unsanctioned "original intent" methodology, presumably because it cannot adequately square the result it reaches with the Act’s substantive context, that is, the literal words of § 216(b) affording victims of retaliation the alternative reme- dies of "reinstatement" and "employment." Obviously, only former employees can be reinstated, leaving the remedy of employment to those who cannot be reinstated, i.e., those, like Dellinger, who have yet to be employed.

Anyone who thinks proving employment discrimination is easy has not read a lot of appellate opinions from the federal fourth circuit. In Ash v. Tyson Foods, after a jury verdict for plaintiffs, the Fourth Circuit affirmed the trial court's grant of a motion for judgement as a matter of law. Seems the court did not think that the term "boy" directed by a white supervisor to a black subordinate evidenced racial animus. A unanimous Supreme Court rejected the Fourth Circuit's rationale and remanded. In a lengthy, but unpublished opinion, the Fourth Circuit has rejected a second jury verdict in favor of plaintiffs. Essentially the court again found that the evidence proffered by plaintiffs was insufficient to support a jury verdict, despite 2 juries concluding otherwise. According to this newspaper report, the first jury was predominantly white and the second jury had only one black juror.