by Art Gutman Ph.D., Professor, Florida Institute of Technology
In an Alert posted on March 2, 2010, I summarized the ruling in EEOC v. CRST Van Expedited [2009 U.S. Dist. LEXIS 71396], in which Judge Linda R. Reade struck down class certification in a pattern or practice sexual harassment claim by the EEOC on behalf of 67 women. Judge Reade also awarded nearly 4.5 million dollars in attorney fees and expenses to CRST. More recently, a three-judge panel of the 8th Circuit affirmed the most important parts of Judge Reade’s opinion (on class certification & monetary awards) in a divided 2-1 ruling on February 22, 2012 [670 F.3d 897]. Most recently, the EEOC filed a petition for an en banc rehearing on April 9, 2012.
The facts in this case are that in September 2005, Monika Starke, a new truck driver, filed a formal complaint that she was sexually harassed by two of her male trainers (‘lead drivers’). During its subsequent investigation, the EEOC learned that four other women also filed formal sexual harassment charges against CRST. After several rounds of queries and responses between the EEOC and CRST, CRST indicated its willingness to conciliate. However, the conciliation process broke down in principal part because the two parties could not agree on who should start with a conciliation proposal and the EEOC filed it pattern or practice suit.
Judge Reade ruled that by cutting off the conciliation process “the EEOC wholly abandoned its statutory duties as to the remaining 67 allegedly aggrieved persons in this case.” She ruled further that:
The EEOC's failure to investigate the claims of the 67 allegedly aggrieved persons deprived CRST of a meaningful opportunity to engage in conciliation and foreclosed any possibility that the parties might settle all or some of this dispute without the expense of a federal lawsuit. The EEOC's insistence that the 67 allegedly aggrieved persons for whom it now seeks relief are truly part of the "class" of persons it referenced in the Letter of Determination is not well taken.
On appeal, the two 8th Circuit judges in the majority ruled that the “EEOC’s conduct demonstrated it did not reasonably investigate the class allegations of sexual harassment”, but instead, “engaged in fact-gathering as to the ‘class’ during the discovery phase of an already filed lawsuit.” The two judges also ruled that the male trainers were co-workers, not supervisors, meaning there was no vicarious liability on the part of CRST. Rather, the female victims were obligated to complain directly to the company so as to give it a basis for known the harassment was occurring.
The EEOC’s appeal is based primarily on the dissenting judge (Murphy), who wrote:
I respectfully dissent from the majority's conclusion that the EEOC failed to fulfill its litigation prerequisites in this case and the resulting dismissal of trial worthy sexual harassment claims. The majority imposes a new requirement that the EEOC must complete its prerequsite duties for each individual alleged victim of discrimination when pursuing a class claim. This rule places unprecedented obligations on the EEOC and in effect rewards CRST for withholding information from the Commission. In addition I dissent from the holding that CRST's lead drivers are not supervisors of the women trainees assigned to their long haul trips.
For its part, the EEOC contends that the “the (3-judge) panel's requirement that EEOC identify every potential victim before filing suit is unsupported by the language of Title VII and conflicts with the decisions of every other court of appeals that has addressed this question” and that this “unprecedented imposition of this new requirement will impede EEOC's effort to enforce Title VII and other civil rights laws in workplaces with the most widespread discrimination.”