The good worker myth: it will never happen to me


sexual harassment sex discrimination

Last week, I was reviewing a sex discrimination and sexual harassment case out of the First Circuit and it struck me for several reasons, including because it speaks to the myth that bad employment outcomes never happen to good performers. I call this the good worker myth.

What do I mean?

Let's review the facts of this particular case. In the words of the First Circuit:

This case arises from plaintiff Kathleen Burns's claims of sex discrimination and sex harassment. Burns worked for over ten years as a Transportation Security Administration ("TSA") employee in the Boston Field Office of the Federal Air Marshals Service ("FAMS"), where her primary role was scheduling international flights for the Federal Air Marshals ("FAMs"). She was considered an "excellent employee," and the scheduling system she in part designed was recognized as a "best practice" for other field offices to follow.

In May 2012, David Johnson assumed the role of Supervisory Air Marshal in Charge ("SAC") at the Boston Field Office and within weeks transferred Burns's flight assignment duties to a group of male employees. Johnson also spoke to and interacted with Burns in a way that Burns asserts was hostile and unlike his treatment of male employees. This included Johnson holding a baseball bat in what Burns described as "a swinging position" in almost every interaction with her.

In addition to swinging a bat in almost every interaction with Burns, the new boss also questioned her schedule and performance. Ms. Burns's shift included in substantial part nights and weekends, which she liked for personal reasons relating to her kids' childcare. Such a schedule was considered an "alternative work schedule."

Despite the fact that the evidence suggested that her night shift "filled a lot of holes that others did not want to work," the new boss:

admitted that, even before he arrived, he knew about Burns's alternative work schedule, the reason for it, and that he had some "misgivings" about it. A few weeks later, he said he had "done his homework" on Burns and despite hearing several reports that she performed very well, he nonetheless had "concerns." There is no evidence that Johnson asked about any other employee's alternative work schedule.

And indeed, the new boss felt compelled to "do[] his homework" and suggest his misgivings about Burns despite a string of strong performance indicators that were well known across the office:

Johnson's negative assessment of Burns's performance is all the more stark when set against the positive evaluations and numerous accolades Burns garnered for her work. It is undisputed that "[o]ver the course of her employment, [Burns] was categorized as an `excellent employee' and `extraordinary' [sic] who received exemplary performance evaluations....

[She] received numerous letters of commendation from her former [boss] at the Boston Field Office." [H]er direct supervisor, testified in a deposition, "[s]he was probably[] one of the best employees that I've ever worked with."

And beyond this, the flight scheduling system itself, which Burns in part created, was considered a "`best practice' for other field offices to follow."

According to the opinion, after the new boss transferred her most interesting duties to all men, relegating her job duties to largely data entry, she put in for early retirement.

Based on the facts presented by the First Circuit, there was nothing Kathleen Burns could have done to change this treatment by the new boss. The period in which they worked together before she put in for retirement was approximately one to two months. But he admitted to knowing of her and her role in international flight scheduling, among other things, before he even began. Further, that she had received numerous official accolades, including "numerous letters of commendation" and "exemplary performance evaluations," would have been likely known or at least available to him if he were interested in taking them into account.

Instead, he apparently swung a baseball bat at her and relegated her to data entry shortly after he started in the position.

I went to law school because I was interested in workplace dynamics. Having worked in a number of companies and organizations, I wanted to understand how labor and employment law worked, and particularly how it interacted with the myth of meritocracy -- does the law require that you get what you deserve?

In other words, what if you worked hard and deserved the kudos -- the pay increase, the promotion, the flexible schedule, [insert what you will] -- but didn't get it because the boss was biased, a jerk, unfair, played favorites, [again, insert what you will]. How and when did the law step in? Did it ever?

Many years later, I now can suggest answers to the many varieties of that question.

What I also have come to know is that the above situation, sadly, is common.

I speak to people regularly who meet the above profile. The treatment they received was not merited based on their performance; it arose from other factors that were beyond the control of the employee.

In this case, the First Circuit held for Kathleen Burns and sent her claims of sex discrimination and sexual harassment back to the lower court to proceed to trial. In so doing, it overturned the lower court's decision tossing the case.

If she wants it, she will now get her day in court. The First Circuit determined that the law requires that -- and she deserves it.

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