Most employment class actions today are wage and hour matters, but class actions for alleged discrimination are still brought and can present their own unique challenges for both plaintiffs and the defense. Apart from the procedural differences between Fair Labor Standards Act collective actions and Rule 23 class actions, one key difference between wage and hour cases and those for discrimination is the need to determine the employer’s intent. In sexual harassment cases, there is an additional element regarding how the plaintiff subjectively viewed the claimed conduct, adding another layer of determinations the court must make, one that may not be susceptible to class action treatment.
Last week, in Sellars v. CRST Expedited, Inc., Case No. C15-117-LTS (D. Iowa Jan. 15, 2019), the United States District Court for the District of Iowa entered an extensive opinion in which it ultimately reversed its own certification order in an action claiming classwide sexual harassment and retaliation. The case itself involved long-distance truck drivers. To keep trucks rolling while meeting federal standards limiting the number of hours that one driver can drive every day, the employer used two drivers per vehicle. The two would switch off when the time came, being a rider roughly half the time and a second driver during the other half. The plaintiffs, a class of women truck drivers, contended that there was a hostile environment of sexual harassment both in training (where one trainer would ride with one trainee) and in the completion of long-distance routes, when a cab might easily have one woman and one man working together, but far from the company’s headquarters.
The company had sexual harassment policies in place, and when a problem arose generally required the complainant to leave the truck and travel home separately at the company’s expense (or so it asserted). The plaintiffs raised several issues regarding the policy, including how the company resolved conflicting accounts of alleged harassment, how frequently complaints resulted in discipline against the person accused of harassment, and how the company handled the separation of the complainant and the other driver. The court initially certified the class based on a relaxed burden it allowed the plaintiffs at that stage. The defendant then later moved both for partial summary judgment and to decertify the class. In the first part of its decision, the court granted summary judgment as to the proposed retaliation claim. In the second, it then dealt with whether the hostile environment sexual harassment case could proceed on a class basis. Here, it found that the case stumbled.
The court relied largely upon settled principles of law for what the plaintiffs needed to prove. The court stated the elements in varying ways but found that the claims required (1) a pattern and practice of sexual harassment, (2) the harassment to be objectively offensive, (3) the harassment to be subjectively offensive to the victim, (4) the employer to be aware or should have been aware of the harassment, and (5) that the employer failed to take appropriate remedial action. It found at least three problems in resolving the claims on a classwide basis.
Keep in mind that the claimed harassment was taking place primarily on the road. Two individuals would ride a truck together without supervision, quite likely tens or even hundreds of miles from the employer’s place of operations. Frequently, a claim would come down to one trucker’s word against the other’s. Rarely did witnesses or other corroborating (or refuting) evidence exist. The plaintiffs relied upon approximately 135 complaints of claimed harassing conduct. Incidentally, it isn’t clear from the opinion how many trips or miles were driven by the company’s drivers, nor was there any analysis of the frequency of the claimed incidents versus the overall number of times men and women worked together. There was also little analysis of exactly what claimed harassment there was and how many disagreements between drivers arose from two relative strangers having to drive 16 hours a day together rather than from any illegal misconduct.
In any case, the court found that the certification order could not stand for at least three reasons. First, the plaintiffs never explained how they would prove sexual harassment on a class basis. The claimed incidents occurred between rank-and-file employees far beyond the view of any supervisor, and an incident on one ride could not be imputed to a different trip with different individuals miles away. As the court summarized the problem, “This is where the class structure falls apart, as there is no common evidence regarding the alleged harassment female drivers experienced.”
Similarly, although a claim of hostile environment required pervasive sexual conduct, many of the claimants alleged only a single incident, one that likely would not trigger liability for the employer. Second, the plaintiffs could not explain how they would prove the subjective element on a classwide basis.
Finally, the court found that the question of the appropriateness of the employer’s response could not be made on a classwide basis. The company’s formal policies and practices were lawful. The employer’s response to each complaint would need to be evaluated on its own merits.
Ultimately, the court held that the claims did not meet the requirements of predominance and superiority and decertified it, leaving only the individual plaintiffs’ own hostile environment claims.
The Sellars case highlights some of the inherent problems with certification of certain types of claims. Particularly for a workforce that works almost entirely out of sight of their supervisors and an employer with lawful harassment policies, it is difficult to see any real-life fact pattern that would have enabled resolution of their claims on a classwide basis.
Interestingly, the company introduced evidence that it employs far more women than its competitors do. As of the date of this blog, it also maintains a tab on its website promoting the experience of its women drivers, including testimonials from women employees and others.
The bottom line:
Hostile environment sexual harassment claims may be poor candidates for class action treatment due to the need to evaluate the conduct itself, the complaining party’s reaction to it, and the employer’s response under the circumstances it knew or should have known about.