Another Pattern or Practice Problem: Harassment Cases Don't Fit

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