Monday, February 15, 2010
Last week, Judge Linda Reade, chief judge for the Northern District of Iowa, entered an order requiring the EEOC to pay $4.5 million in attorneys fees to defendant CRST, a trucking company that the EEOC had sued in federal court alleging that a large number of female employees had been sexually harassed. Judge Reade based her decision on what she termed a "sue first and ask questions later" policy.
The facts are involved. One employee of CRST filed a charge in 2005, alleging that she had been subject to sexual harassment at CRST, including both hostile environment and quid pro quo claims. The EEOC did not complete its investigation within 180 days and that woman did not seek a right to sue letter. In 2007, the EEOC brought an action against CRST on behalf of the woman and unspecified others. The woman intervened, and as other plaintiffs were found, they were added, and they intervened. At some point, the EEOC identified about 270 women it said had been harassed. It made 150 of them available to CRST for depositions.
Last summer and fall, the district court dismissed claims on behalf of some of the women and entered summary judgment against the claims on behalf of most of the rest and on behalf of the EEOC itself for a variety of reasons--mostly that the EEOC failed to provide sufficient evidence from which a reasonable jury could infer a pattern or practice of tolerating sexual harassment. That order was reported at 611 F. Supp. 2d 918, and claims on behalf of sixty-seven women remained. Ultimately, the court dismissed the action as to those women because the EEOC had not investigated the charges of these women before it filed the action, nor did it attempt to conciliate their claims and avoid litigation. It ended up creating a huge burden on CRST and the court.
The good news for the EEOC was that the fee order (here courtesy of Ross Runkel) didn't grant everything that was requested. CRST sought about $7.6 million.
The course of this case highlights a number of problems with Title VII as it is currently written and enforced. On the one hand, if there are a large number of women who are being harassed at work, the EEOC should be able to do something about that--and it should be able to investigate more broad practices if that's where one charge leads it. As a practical matter, the EEOC's only real enforcement power is to bring an action in federal court. At the same time, as Jason Bent noted here, harassment cases don't fit well into the pattern and practice model, but the individual disparate treatment model doesn't fit really well when you have a case that involves this large number of women at separate locations harassed by separate men. Still it doesn't seem fair for the agency to file a suit and while it has the employer on the hook keep extending the case forever with new people who may not have suffered discrimination until after the lawsuit was filed--at least that was the district court's view. But I'm not sure what the EEOC should have done, either.
I suppose that's what keeps us all in business, but it doesn't seem a very good system.
Hat tip: Victoria Herring