Wednesday, July 13, 2016

Ascribing Societal Stereotypes to Employers: The First Circuit's Guilty-Until-Proven-Innocent Approach to Sex Discrimination Claims

In Burns v. Johnson, No. 15-1982 (1st Cir. July 11, 2016), the First Circuit held that Kathleen Burns, an employee in the Boston office of the Federal Air Marshals Service, had presented sufficient evidence for a reasonable jury to conclude that the office director transferred Burns's international-flight-scheduling duties to a group of male supervisory federal air marshals (SFAMs) because of Burns's sex.

One of the most striking aspects of Burns is the court’s reliance on larger societal stereotypes about sex roles to evaluate the defendant's asserted reasons for reassigning the plaintiff's job duties. The defendant contended that the office director reassigned the flight-scheduling duties in order to foster leadership among the SFAMs. The court concluded that, given societal stereotypes, a reasonable jury could find that the director's consideration of leadership roles discriminated against Burns based on her sex. As the court explained:

"[U]nlawful discrimination can stem from stereotypes and other types of cognitive biases, as well as from conscious animus."
One such stereotype is the idea that men are better suited than women for positions of importance or leadership in the workplace, particularly where the task concerns national security or defense. [The office director] testified in a deposition that he intended the change in Burns's duties to give more "leadership" to the SFAMs in the scheduling process. A reasonable jury could find that a sex-based stereotype was behind [the director's] questioning of why "she" was in that role as well as his belief that "leadership" should instead be given to the group of male SFAMs, and that these biased beliefs precipitated the decision to give Burns's duties to a group of men.
Burns is a direct descendant of Chadwick v. Wellpoint, 561 F.3d 38 (1st Cir. 2009), in which the First Circuit held that the plaintiff had presented sufficient evidence to show that she was denied a promotion based on sex stereotypes about childcare responsibilities:
Given what we know about societal stereotypes regarding working women with children, we conclude that a jury could reasonably determine that a sex-based stereotype was behind [the decisionmaker's] explanation to Chadwick that, "It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you just have a lot on your plate right now." 
What makes Burns and Chadwick remarkable is that the court presumed, in the absence of evidence to the contrary, that an employer acted consistently with societal stereotypes about sex roles. Burns and Chadwick effectively establish a First Circuit rule that, in cases in which sex stereotypes may be at play, an employer is presumed to have violated the law unless it can establish otherwise. 

As Judge D. Brock Hornby observed in the district court decision in Chadwick, before he was reversed, it may be tempting to rely on societal stereotypes to conclude that an employee's sex underlies an employer's adverse action, but doing so would, in essence, be stereotyping employers as stereotypers. If EEO law prohibits employers from stereotyping employees, then surely the enforcers of EEO law should not be doing the same with respect to employers. 

Moreover, as Judge Hornby further observed, this approach is contrary to the statutory burdens of proof:
To allow liability based solely upon the prevalence (but not universality) of stereotypes . . . would capture some actions that are not based on stereotyping. . . . Of course the opposite rule carries the risk of under-enforcement. But our system of civil justice puts the burden of proof on the plaintiff. 
As a final point, to the extent that the First Circuit's stereotyping analysis purports to cover employment decisions motivated by decisionmakers' subconscious bias, it may be inconsistent with Supreme Court precedent. As discussed in a prior post, the Supreme Court has indicated at least twice that subconscious/unconscious discrimination is not actionable as disparate treatment. The First Circuit has taken the lead in embracing a contrary view but has yet to reconcile its approach with the Supreme Court's.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.