“I wonder how that would work.” Is that statement alone sufficient to support a legal claim of sex discrimination? According to the 1st U.S. Circuit Court of Appeals in the matter of Elizabeth F. Warner v. Louis Dejoy, Postmaster General of the United States Postal Service, the answer is yes.

In Elizabeth F. Warner, Ms. Warner, the plaintiff, was a United States Postal Service (USPS) worker who claimed she was passed over for promotion because of her gender. When she applied for two higher-level jobs with the postal service, the same supervisor interviewed her both times and both promotions went to men. During the second interview, the supervisor remarked that the location for one of the promotions never had a female in charge and he “wondered how that would work.”

In evaluating whether this amounted to sex discrimination, the appellate court focused on three things that made this comment legally sufficient:

1. Timing: The remark was made during the interview, not years earlier or in casual conversation. Courts treat comments made in the middle of the decision-making process as direct insight into motive.
2. Speaker: The person who made the comment was not a co-worker or peer but the actual decision maker. Remarks by the person with authority to hire or promote carry far more weight than office gossip.
3. Meaning: The court said that the comment could be understood in more than one way. It might have been harmless wondering aloud or a clumsy acknowledgment of the office’s all-male history. Either way, it is up to a jury to decide and, according to the court, a jury could reasonably hear it as doubt that a woman could do the job. Anytime there is “uncertainty” as to interpretation, the issue goes to a jury.

Takeaways for Employers:

1. Curiosity is not a defense – a remark that feels harmless in conversation can sound like bias once it is written in a complaint or read aloud to a jury.
2. Do not narrate your thoughts.
3. Context counts, but phrasing matters.
4. Practice what you are going to say before you say it.

Please contact PTGB Law with any employment law related questions at 201-569-5959 or visit our website at ptgb-law.com.