A boss who strolled around with a baseball bat, which he hoisted to a swinging position when addressing a particular female employee, did not create a hostile work environment.
And his decision to change the employee’s work responsibilities wasn’t gender discrimination, even though he expressed concern about her flexible, family-friendly hours and coworkers testified the switch had something to do with the boss’s attitude towards women.
In June, US District Judge Denise J. Casper tossed the case filed in 2012 by Boston TSA employee Kathleen Burns against Jeh Johnson, federal secretary of the Department of Homeland Security, and Burns’s bat-wielding supervisor in Boston, who said he carried a Louisville Slugger to spark conversations about sports and build rapport. The judge conceded there might be an “uncomfortable” or “tense working relationship” between the two. But that’s not enough to make it legally hostile. And, overall, the supervisor’s conduct was not severe or pervasive enough to amount to discrimination under the Civil Rights Act of 1964.
Besides, since Burns took early retirement, there was no way to determine whether the changed job duties were an “adverse employment action” required by the law. Burns said she was forced to retire because she could not continue working under such conditions, but that didn’t matter.
Such a finding is business as usual in federal courts across the country, according to Nancy Gertner, a retired US District Court judge in Boston.
In the court of public opinion, what constitutes discrimination is hotly debated, from police bias towards black men to Donald Trump’s language about women. There’s a perception that when it comes to racism or sexism, the PC police rule. But while they may frame the public discussion, what happens in a court of law is very different.
There’s a high bar for getting a case before a jury — especially in federal court — so a judge often has the final say.
Plaintiffs in employment discrimination cases are rebuffed “more so than any other party in any other type of case,” Gertner wrote at the time of the 50th anniversary of the historic Civil Rights Act. When plaintiffs do get to trial and convince a jury of their claims, she added, “their damage verdicts run a substantial risk of being reduced by trial judges and their counsel’s fees slashed.” What Gertner describes as the gutting of the Civil Rights Act is happening for a variety of reasons, including pressure on judges to close cases, as well as some people’s perception that we “are post-racial, post-gender.”
Gertner cites Johnson v. Freese, a Georgia case in which the white owners of a nightclub directed the N-word toward their African-American employees. The boss asked someone wearing a shirt with a monkey on it, “Are the Obama shirts in?” Black workers suffered other indignities as well. Yet in granting summary judgment, the judge said that while the white owners were “racist, bigoted and/or offensive people,” none of the incidents went beyond the “ordinary tribulations of the work place.”
Sexist speech gets the same pass. One plaintiff’s supervisor called her a “whore,” “stupid bitch,” and “hooker,” but the case was thrown out because the conduct represented “general vulgarity,” not speech regulated by law. There was no hostile work environment either for an employee whose manager “touched her inappropriately on two occasions by putting his hand on her crotch,” because, the court found, there was evidence the plaintiff had “used vulgar, profane language, told dirty jokes, graphically discussed her sex life, and engaged in sexual banter.”
No wonder the case brought by Burns, one of a few female employees in the Boston TSA office, went nowhere. She had worked there for 10 years, with no apparent issues. Then the bat-brandishing supervisor arrived.
All he did was demand to know “who are you and what do you do for me?” According to court documents, when the supervisor told Burns he was taking away her responsibility to schedule international flights, he said “everyone had spoken very highly about” Burns, but he was concerned because someone told him she was “sometimes hard to reach.”
Sure, he was holding the bat while noting he was “not paying” her “to work from home.” But as the judge wrote, he did not threaten Burns with the bat, “nor utter anything sexually suggestive or offensive to her.” According to the judge’s memorandum, a complaint Burns also filed with the TSA Office of the Inspector General led to the supervisor’s demotion and transfer on ground that it was inappropriate for him to carry a baseball bat.
But inappropriate doesn’t necessarily add up to discriminatory. Case dismissed.