Last week, Marcia McCormick posted a story about the
settlement of an EEOC suit against a private prison operator in Colorado. The lawsuit, EEOC v. Corrections Corp.
of America, No. 06-cv-01956-KHV-MJW (D. Colo.), involved some disturbing
allegations of conduct by male managers, including sexual harassment, requests
for sexual favors, retaliation in response to complaints about such conduct,
and even allegations that – if true – would likely rise to the level of
criminal rape. The EEOC alleged
that the defendants engaged in an unlawful pattern or practice of maintaining a
hostile work environment based on gender, in violation of Title VII. The case settled, with the parties
entering into a consent decree that included a total payment of $1.3 million to
the 21 individual claimants in the class (with $140,000 designated as payment
to private counsel representing three intervenor-plaintiffs). Here, I should note that when the EEOC
brings a pattern or practice case, it is not an ordinary class action under
Rule 23 of the Federal Rules of Civil Procedure. The EEOC can pursue a pattern or practice case, including
seeking monetary relief on behalf of a group of individuals, without meeting
the Rule 23 requirements for class certification. Thus, the “class” of claimants is really just the group of
allegedly aggrieved individuals for whom the EEOC seeks relief. The defendants, as part of the consent
decree, denied all of the allegations.
Putting aside, for the moment, the shocking nature of the
supervisors’ alleged conduct in Corrections Corp., the case also involved some
interesting doctrinal issues. The
Corrections Corp. case is a prime example of the next problem area in pattern
or practice law that I want to discuss.
Hostile work environment cases, like Corrections Corp., do not fit the
Teamsters burden-shifting mold for a pattern or practice case. I explain why after the jump.
As I described in last week’s post, the
Supreme Court held in Teamsters that if the government meets its burden of
establishing in Phase I that the employer engaged in a pattern or practice of
discrimination, then the burden of proof shifts onto the defendant in Phase II
to prove that the adverse action suffered by any particular claimant was not the
product of discrimination. In
other words, if the government can establish a pattern or practice in Phase I,
then a presumption is created in favor of individual relief for each individual
claimant. Statistical evidence
plays a key role in Phase I of most pattern or practice cases. As the Teamsters Court put it, an
unexplained statistical disparity in hiring or promotion can provide the
“telltale sign of purposeful discrimination” that justifies shifting the burden
onto defendant and creating a presumption in favor of individual relief as to
each claimant. Individual
testimony about anecdotal experiences can, in the words of the Teamsters court,
bring “the cold numbers convincingly to life” in Phase I to demonstrate the
existence of a pattern or practice of discrimination.
In pattern or practice of harassment cases, however,
meaningful statistical evidence is often unavailable. In Corrections Corp., for example, the EEOC did not offer
any statistical evidence at all.
Instead, it argued that a pattern or practice could be found in Phase I,
under the Teamsters framework, without any statistical evidence. In a Motion to Bifurcate Proceedings
the EEOC argued that in Phase I a “few individual class members may provide
anecdotal evidence of discrimination during the liability trial, in order to
bring the pattern or practice convincingly to life.” If the jury found a pattern or practice based on this
evidence, the EEOC argued, then the burden should shift to the defendant in
Phase II for determining individual relief. Thus, according to the EEOC, in Phase II “a putative class
member may benefit from a presumption that he or she suffered
discrimination.” But without some
statistical “telltale sign” to accompany the individual testimony, should the
anecdotal testimony of some subset (perhaps only “a few,” as suggested in the
EEOC’s brief) of the 21 class members be sufficient evidence to shift the
burden of proof onto the defendant for Phase II and create a presumption that all
the class members were subjected to unlawful harassment?
That question is further complicated by the subjective
element of a hostile work environment claim. The Supreme Court has held that, in order to be actionable
under Title VII, a work environment must be both objectively hostile (i.e., a
reasonable person would find the environment hostile or abusive) and
subjectively hostile (i.e., the plaintiff actually perceived the work
environment to be hostile or abusive).
Should the testimony of only a few of the class members create a
presumption, for purposes of the individual damages to be decided in Phase II,
that: 1) all 21 class members were exposed to conduct that was sufficiently
severe and pervasive so as to rise to the level of an objectively hostile
environment, and 2) that all 21 class members subjectively perceived as hostile
the conduct to which they were individually exposed? Presumably, the EEOC would offer the testimony of only the
most sympathetic class members in Phase I, leaving the less sympathetic class
members to benefit from the operation of the presumption in Phase II. In the Corrections Corp. case, the EEOC
asserted that a showing of a pattern or practice of harassment through
anecdotal testimony in Phase I should create a presumption in favor of
individual relief for each of the claimants in Phase II, but acknowledged that
the individual claimants would still need to show, in Phase II, that they were
subjectively offended by the hostile environment. (The EEOC’s argument was not clear on which side should bear
the burden of proof on that issue).
The Teamsters Court did not say that statistics are
necessarily required to establish a pattern or practice at Phase I. But should anecdotal testimony of a
subset of claimants be sufficient to create a presumption in favor of all the
remaining claimants? If so, how
many (or what percentage of) claimants must testify to establish a pattern or
practice?
These are difficult questions. Courts are all over the map on pattern or practice of
harassment cases. The EEOC
obtained favorable rulings in a few early cases, EEOC v. Mitsubishi, 990 F.
Supp. 1059 (C.D. Ill. 1998), and EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D.
Ill. 2001), which allowed a Teamsters-style presumption in harassment cases,
even without statistical evidence.
Some later rulings, like EEOC v. Int’l Profit Assocs., Inc., No. 01 C 4427, 2007 WL 3120069 (N.D. Ill. Oct.
23, 2007), have attempted to apply various modifications of the Teamsters
approach by eliminating or narrowing the effect of the presumption in
harassment cases. Thus, in Int’l
Profit Assocs., the court held that sufficient anecdotal evidence of harassment
at Phase I could establish that the employer maintained a policy of tolerating
harassing behavior, justifying injunctive relief against the employer at the
conclusion of Phase I, but that such testimony could not create a presumption
of unlawful harassment in favor of all the individual claimants for purposes of
determining individual relief in Phase II.
These issues come up every time the EEOC brings a pattern or
practice of harassment suit, and the district courts continue to struggle with
them. Although the EEOC has made systemic
harassment cases a priority, they never seem to make it to trial or to an
appeal – probably because the EEOC is armed with the Mitsubishi and Dial
district court rulings. See EEOC
v. CRST Van Expedited, Inc., 611 F. Supp. 2d 918, 938, n.10 (N.D. Iowa 2009)
(suggesting this explanation). As
a result, the appellate courts have not yet had much of an opportunity to
provide any guidance. Almost all
of the EEOC’s systemic harassment cases end up settling with the entry of a
consent order, and Corrections Corp. is no exception.
In future posts I will take a closer look at these consent
orders, including the one in Corrections Corp., and explain why the EEOC is
missing an opportunity to spur real change in some workplaces that need
it. I will also consider another
feature of hostile work environment cases – relatively symmetrical access to
the evidence – that might make Teamsters burden shifting inappropriate in
pattern or practice of harassment cases.
-Jason Bent
https://lawprofessors.typepad.com/laborprof_blog/2009/10/another-pattern-or-practice-problem-harassment-cases-dont-fit.html
Perhaps something to consider here is the difference between anecdotal evidence and qualitative research/evidence. Qualitative research can be just as empirically sound as quantitative especially when trying to find the in-depth stories of a small group of participants. Further, qualitative research can present us a better understanding of the "why?" which is of course critical in these cases. It sounds to me that in these cases the EEOC is using qualitative research not anecdotal evidence.
Posted by: Jerry Carbo | Oct 20, 2009 9:32:39 AM