Monday, March 12, 2012
My friend Mike Zimmer is famous for his "slicing and dicing" article,which rightly critiques courts for dividing plaintiffs' proof into small pieces -- none of which is sufficient to show discrimination.
I've just finished reading a case out of the Eighth Circuit which goes considerably further than anything Mike decried. By the time the district court and circuit court had made mincemeat out of the EEOC's case, there was, almost literally nothing left. EEOC v. CRST Van is one of the more remarkable opinions I have ever read in its ability to deploy substantive and procedural law to reduce what appeared to be a dramatic pattern of sexual harassment to a few stray claims.
At issue was harassment in a training program for a company operating the largest fleet of "team driven" tractor-trailers. The business model put a team of drivers in the same cab for as much as 21 days, with the drivers alternating sleeping and driving to maximize mileage and minimize stops. The potential for harassment as women enter that previously male-only business is pretty obvious. And to get a full time/full pay job, women had to successfully complete CRST's training program, the core of which is a "28-day over-the-road training trip with an experienced 'Lead Driver.'"
You guessed it. One woman filed an EEOC charge claiming harassment by two Lead Drivers. The EEOC investigated and ultimately brought suit, informing the court that it had a good faith belief that about 270 had actionable claims for discrimination. Sounds pretty serious, huh? Not so much. Here are a few highlights of judicial mincing:
- The circuit upheld the district court's dismissal of the claims for 67 more women because the Commission had failed to investigate/conciliate for these employees before suit.
- The Eighth Circuit affirmed no automatic liability for the company for harassment by Lead Drivers because they were not "supervisors" -- although it seems hard to credit that they did not have enormous power in determining who would become a full time driver, the court found that they the Lead Drivers did not have decision-making power but only made "recommendations" as to whether trainees could do the job.
- The court upheld summary judgment for the employer as to 9 of 11 women because the harassment they suffered wasn't severe or pervasive (mere "offensive utterances" weren't enough, even when coupled with "poor hygiene"), although it reversed the district court as to two of them.
- As to 21 women, the harassers were co-workers (recall, Lead Drivers aren't supervisors), which mean that CRST could be liable only for negligence, and the company lacked actual or constructive notice as to 10 of them
- As for the remaining 11, there was no liability because CRST acted promptly when it received notice.
Ironically,CRST has gotten attention not so much because of the oinion's remarkable exercise in reducing to chump change what is apparently a wide-spread pattern of sex discrimination at one of the nation's largest transportation company's but rather for the Eighth Circuit's vacation of an award of $4,000,000 to the defendant against the CRST. Apparently, even in the Eighth Circuit it's possible to carry a good joke too far. Or maybe not -- the vacation was "without prejudice" to the district court's awarding fees later.
I understand your larger point about slicing and dicing proof, but I disagree with the application of that argument to this situation. I think you understate the importance of the investigation and conciliation requirement - the first slice you list. The primary reason the district court sanctioned the EEOC was failure to comply with the statutory requirement of pre-suit conciliation. The EEOC was using discovery to find additional aggreived persons, dragging out the case, expanding the size of the "class," and refusing to identify the claimants even as discovery proceeded. The 8th Circuit agreed that the EEOC failed to comply with this statutory requirement. The sanction was vacated only because defendant was no longer technically the "prevailing" party since 2 of the claims survived. More importantly, I think the CRST case nicely illustrates the problem with systemic harassment cases. The slicing and dicing on the merits of various "class" members' claims is a natural result of trying to squeeze harassment cases into the pattern or practice/systemic disparate treatment mold. Aggregate proof doesn't work the same way for harassment cases as it does in failure to hire, promote, etc. cases. So we end up looking at the merits of each individual's claim of harassment - different slices for different situations, but each slice was at least arguably appropriate under the applicable harassment law.
Posted by: Jason Bent | Mar 12, 2012 10:38:57 AM