The McCain campaign last night was trying to make much of a comment that Sen. Obama made on the campaign trail on Tuesday about the concept of Sen. McCain bringing about change.  "You know, you can put lipstick on a pig," Obama saPig Races At the Vermont State Fair (9/2008) id, "but it’s still a pig."  In fact, Sen. McCain made similar comments last year referring to Sen. Clinton’s health care plan

But in employment law arenas, we’re often confronted with "stray remarks" used to prove discrimination.  I was fascinated to know if this phrase had come up in the legal context before (particularly employment law), since I’m sure we’ll hear something more about it during the next media cycle.

My quick search found just a few notable finds, mainly by courts or legislative branches that used the phrase to discuss a topic, but not as a stray remark:

  • In 2005, various Democrats issued a minority report on the Job Training Improvement Act of 2005, the full version of which can be found here.  But at the end, of the report, several representative add their views on employment discrimination (which can be found here).  They state:

    Employment discrimination is ugly. You can put lipstick on a pig, but you can’t pass it off as a beauty queen. And you cannot dress up `We don’t hire Catholics, Jews, and Hindus’ with poll-tested semantics and euphemisms and pass it off as anything other than ugly discrimination.

  • Of federal court decisions, a First Circuit case in 2005 addressing civil rights had this to say on an issue of using a person’s prior bad acts to show that they had a propensity to commit current acts:

    Using the plaintiff’s prior bad act to show that the defendant did not mistakenly or accidentally identify the plaintiff as one of his attackers is nothing more than a ham-fisted attempt to put lipstick on the propensity pig.

  • And then there was a judge who was cited for "poor taste" earlier this year by using a dressed up pig picture in a written ruling "commenting on an attorney for a school district that was being sued for allegedly discriminating in employment."  According to a report from June 2008 from Rocky Mountain News, the Colorado district court judge "in a written ruling, included a picture of a pig wearing pearls, lipstick and sunglasses, saying the attorney’s argument was ‘no more availing than’ the pig."

If you know of any other good "lipstick on a pig" references in court decisions, particularly related to employment law, feel free to submit comments about it.

And for employers, I would avoid using the phrase for the foreseeable future. Given the connotations this phrase is likely to have for a little while, no good can come of it — even if it is fairly harmless in nature.