‘She’ Gets Another At-Bat in Discrimination Claim

Sometimes a manager’s prejudices come out in obvious ways – such as sexist or racist comments – and sometimes they are more subtle – such as pronouns.  Yes, pronouns (plus baseball bats).

The federal First Circuit Court of Appeals in Boston recently ruled that a manager’s repeated reference to a female subordinate in a condescending tone as only “she” could be enough to show sex bias.

In Burns v. Johnson, the appellate court reversed summary judgment for the employer, the Federal Air Marshals Service, after finding that the plaintiff – if believed – could prevail on her claims of sex discrimination and a hostile work environment.  Although the plaintiff had no evidence of the manager using “sexist or gender-based slurs,” the law does not require such blatant bias, the court noted.

Rather, the court opined, “more subtle cognitive phenomena” could “skew perceptions and judgments” and lead to discriminatory decisions.  While the use of the feminine pronoun, by itself, obviously does not establish bias, if the manager singles the employee out by failing to use the her name and referring to her only as “she” in a condescending tone, that could suggest sex bias, because a “speaker’s meaning may depend on various factors including context, inflection, tone of voice.”

Adding to the odd facts of the case, the manager – who had played baseball in college and apparently never let go of those glory days  – would hold a baseball bat in a “swinging position” when speaking with the plaintiff.  He often did the same with other employees, male and female, but the plaintiff said he did it differently with her and, in any event, she was intimidated.  Let’s hope he didn’t remind her of Robert De Niro’s motivational speech in The Untouchables.

In any event, her battle is far from over. She will still have to prove all the elements of her sex discrimination and hostile work environment claims, which could be difficult based upon the rather thin facts she pled.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLCFor more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.


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