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First Circuit Clarifies Standards of Proof for Sex Discrimination and Sexual Harassment Claims

The First Circuit Court of Appeals has issued a comprehensive opinion clarifying many legal issues in sex discrimination claims, including (1) whether a plaintiff can prove discrimination by circumstantial evidence alone; (2) whether a reduction of job responsibilities that does not involve a reduction in salary constitutes an adverse employment action; (3) whether a plaintiff can prove sex discrimination without evidence of sexist slurs; (4) whether a plaintiff can prove sexual harassment without evidence of sexual comments or actions; (5) whether a plaintiff can prove discrimination or harassment without showing that it was both severe and pervasive; and (6) whether a plaintiff can defeat summary judgment on a Faragher/Ellerth defense by showing that she feared retaliation if she complained about the discrimination . Burns v. Johnson, 829 F.3d 1 (1st Cir. 2016). The First Circuit answered all the questions in the affirmative.

Kathleen Burns worked for the Transportation Safety Administration in the Boston office for over 10 years scheduling international flights for Federal Air Marshalls (FAMs). She received "excellent" reviews and she helped design a scheduling system that was considered a "best practice" for other field offices to follow. Burns frequently worked evening shifts that others did not want because that made it easier to care for her 5 children. Defendant Johnson transferred to the Boston office as a supervisor and brought with him a baseball bat that he would often swing around when talking to subordinates, including Burns. Johnson immediately began addressing Burns in a demeaning tone, asking "Who are you?," "What do you do for me?," and, a week later, "so, you do still work here." He did not speak to male subordinates this way. Johnson also said he had "concerns" about Burns because he had heard she could be "hard to reach." Burns complained to her immediate supervisor about Johnson's comments and actions.

Johnson announced at a meeting when Burns was not present that he was shifting her scheduling responsibilities to other, male employees. When Burns' immediate supervisor attempted to defend Burns and her scheduling system, Johnson called the system "stupid" and left the meeting. He returned with the baseball bat which he began tapping between his legs while staring at Burns' immediate supervisor. Burns' new responsibilities were essentially clerical data-entry duties. When Burns attempted to complain about the changes, Johnson swung the bat around or tapped it into his hand and then left the room. Burns took earlier retirement, filed a complaint with the TSA, and then filed a complaint with the Equal Employment Opportunity Commission. The TSA demoted and transferred Johnson. Burns filed suit in federal district court which subsequently granted defendants' motion for partial summary judgment because Burns had only circumstantial evidence of sex discrimination and no evidence that Johnson's conduct was sexual in nature. Burns appealed.

The First Circuit said Burns could prove her discrimination claims by circumstantial evidence alone. The court also said that the change in Burns' responsibilities was an adverse employment action even if she did remained with TSA for only a short period after she was assigned them. The First Circuit said Burns did not have to remain in the job to confirm the change was permanent. The court also said Burns did not have to show that Johnson used sexist or gender-based slurs to establish that his adverse actions were based on her sex. Rather, there was sufficient evidence from which a jury could infer that. The First Circuit held plaintiff could establish a sexual harassment claim without showing evidence of defendant's sexual desire for plaintiff. The court also said plaintiff need not show that defendant's conduct was both severe and pervasive; rather, it was sufficient to demonstrate it was severe or pervasive. Finally, the court said Burns could defeat a summary judgment argument based on the Faragher/Ellerth defense by showing she reasonably feared retaliation if she reported Johnson's actions.

Burns v. Johnson, 829 F.3d 1 (1st Cir. 2016).

For information about our employment law practice, please see http://www.sfandllaw.com/Practice-Areas/Discrimination-Harassment.shtml.

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