So holds a recent decision by the First Circuit Court of Appeals. In Burns v. Johnson, — F.3d — (1st Cir. 2016), the First Circuit vacated a district court’s decision granting summary judgment to an employer, after the district court concluded the employee’s evidence of gender bias amounted to speculative conclusions about a supervisor’s motivation.
In Burns, the plaintiff, Kathleen Burns, alleged that she was subjected to sexual harassment and discrimination by changes to her duties that left her “with nothing but ‘menial tasks’ and ‘clerical duties.’” She also alleged that her supervisor treated her differently than male employees.
Burns was a Program Assistant in Operations at the Boston Field Office of the Federal Air Marshall Service. She was considered an “excellent employee” and the scheduling system she designed was used by the Federal Air Marshall Service as a “best practice” for other field offices.
In May of 2012, a new supervisor, Johnson, assumed the position of Supervisory Air Marshall in Charge, making him Burns’ immediate supervisor. Within weeks of taking office, Johnson reassigned Burns’ flight assignment duties to a group of male employees. Johnson would also refer to Burns only as “she” when speaking with other employees, emphasizing the feminine pronoun, and using a condescending tone when doing so. In addition, Johnson would sometimes carry a Louisville Slugger baseball bat while at work. Though there was evidence that Johnson would carry the bat when speaking with male employees, Burns submitted evidence that Johnson carried the bat during every encounter with her after he officially took over, whereas he did not constantly use it with men, and that he handled the bat in an intimidating manner when dealing with Burns. The First Circuit Court of Appeals said that, “[o]n this record, a jury could find a convincing mosaic of circumstantial evidence” that the reassignment of flight assignment duties was caused by gender discrimination, and that Burns was subjected to sexual harassment.
In light of this holding, employers should be mindful that plaintiffs do not need to produce direct evidence of gender bias to survive summary judgment, and can rely instead on circumstantial evidence to bring a case to trial. This case demonstrates that something as subjective as a person’s tone of voice can potentially be the difference between obtaining a favorable decision at summary judgment, and taking a sexual harassment case to trial. Employers should have a clear sexual harassment policy combined with training sessions for employees, supervisors, and managers to avoid sexual harassment complaints. In addition, it is important that all sexual harassment complaints are promptly investigated, and appropriately remedied if found to be valid.
The experienced team of labor and employment lawyers at Libby O’Brien Kingsley & Champion, LLC understands employment discrimination claims and has a successful track record of dealing with these issues. Our extensive litigation background helps us shape strategies to avoid unnecessary employment litigation and to be successful when litigation must be undertaken.