Supreme Court Declines to Provide Clarity on Responding to Sexual Harassment in Trucking Industry

ABSTRACT: The Supreme Court recently declined review of a case that could have provided greater certainty for trucking companies' duties in responding to sexual harassment. However, the case provides guidance on best practices for employers in order to avoid liability.

Driving on I-70 heading west from East St. Louis, Illinois, one crosses the Mississippi River into Missouri, and about 250 miles later, crosses the Kansas River into Kansas City, Kansas. Over the course of about four hours, a driver employed by a trucking company will be working in not only three different states, but three different federal court of appeals circuits. Following a recent Supreme Court decision not to review a ruling from the Eighth Circuit, that driver’s employer potentially remains subject to three different standards for responding to sexual harassment.

The case is Sellars v. CRST Expedited, Inc., which presented the issue of how employers must respond to reports of sexual harassment between co-workers to avoid liability under Title VII. The plaintiffs originally filed suit in 2015, asserting several claims against CRST based on alleged co-worker sexual harassment. According to the Eighth Circuit opinion, the case “team drivers” (a system where long-haul truck drivers worked in two-person crews) so that one driver can sleep while the other continues driving. This is done in the confined space of a tractor. CRST did not assign the driving pairs, but would approve teams who had mutually agreed to drive together. A team would not be approved where one of the drivers was tagged by HR as being “male only,” meaning that driver was not approved to pair with a female driver. The “male only” tag was applied to drivers who had previously been the subject of sexual harassment complaints.

The Eighth Circuit opinion recounted numerous alleged instances of inappropriate sexual comments, sexual harassment, assaults, and threats of violence against female employees. The plaintiffs claimed the harassment created a hostile work environment, and the employer was negligent in responding to and failing to prevent harassment. The plaintiffs also asserted that the employer’s policy (since rescinded) of removing the victim from the truck and forcing her to wait, unpaid, at a terminal until she could be placed on another truck, was per se retaliation for complaining about sexual harassment.

Two questions were presented to the Supreme Court. First: “Where an employee complains to her employer about sexual harassment, does the employer fully satisfy its legal obligation under Title VII if it stops the harassment of that employee by the particular harasser complained of (the rule in the Eighth Circuit), or must the employer also take action to deter future harassment by other potential harassers (the standard in the Ninth and Tenth Circuits)?” The second was whether CRST’s policies, which would tend to result in a reduction in pay and, would tend to cause a reasonable employee to “expect that complaining of sexual harassment would directly lead to a net decrease in pay” was a per se violation of Title VII (which is the rule in the Seventh Circuit).

Rather than take up these questions and provide clarity for employers regarding their obligations to respond to complaints of sexual harassment, the Court denied review with no explanation (as is the usual practice). However, the brief submitted by the petitioners has highlighted the circuit-split for savvy plaintiff’s attorneys. Employers should likewise take notice, because in a lawsuit, they may not have much control over which standard will apply.

That is because Title VII plaintiffs have multiple options in deciding where to file their complaints. A plaintiff may file in a judicial district in which 1) an unlawful employment practice was alleged to be committed; 2) the judicial district in which the employment records relevant to the claim are maintained and administered; 3) in the judicial district in which the plaintiff worked; or 4) if the employer cannot be “found” in one of the first three districts, then in the district of the employer’s principal place of business. Under the first option, the unlawful employment practice may be the harassment itself (which may span several states), the location of a manager or HR representative who takes an adverse employment action (in retaliation cases) or fails or refuses to conduct an investigation. For example, a plaintiff living in Des Moines, Iowa, working for a company headquartered in Chicago, who is harassed on a trip from Indianapolis to Denver, may file suit in as many as six different states. However, if an unlawful act occurs in Colorado, she may file suit there to fall within the more demanding Tenth Circuit standard for preventing harassment, and take advantage of a venue that is perceived as more plaintiff-friendly.

Because over-the-road trucking necessarily spans multiple states, and multiple federal circuits, an employer is well-served by trying to comply with the most restrictive circuit in which it operates.

Impact of the Great Resignation

For the fifth year in a row, the “driver shortage” topped the list of industry concerns. Additionally, the trucking industry and those companies in the supply chain are among those hardest hit by “the Great Resignation,” although it may be more accurately labeled “the Great Reshuffle.” Studies show that truck drivers are not leaving the trucking industry, but pursuing more attractive employment opportunities elsewhere within the industry. This rapid movement of employees poses great challenges and risks to employers.

There is obvious tension between the pressure to attract and retain experienced employees and strictly dealing with those accused of harassment. Employers may be reluctant to terminate harassers when it is so difficult to find qualified replacements. It may also be difficult to reject a qualified applicant with a history of harassment accusations. Conversely, it may be difficult to expand the talent pool to attract women, young people, and others in an industry that relies so much on word-of-mouth in hiring.

The deciding factor for employers may then be legal liability, which is why the Supreme Court’s decision to deny review is problematic. But, Title VII is not the only possible source of exposure for employers. Missouri, Kansas, and Illinois all recognize a cause of action for negligence in hiring or retaining an accused harasser. Although there are variations in how each state’s courts have interpreted the claims, the basic elements are: 1) the employer hired or retained an employee when the employer knew or should have known of the employee’s dangerous propensities; and 2) the employee injured a co-employee in manner consistent with those dangerous propensities. Employers may also be liable for other common law torts such as battery, assault, and infliction of emotional distress. For these claims, merely shuffling employees around may not effectively shield employers from liability.

Key Takeaways and Best Practices

• Consider how actions to curb sexual harassment may have unintended negative consequences for female employees. In the Sellars case, female employees received a net decrease in pay due to being separated from their harassers. And there are other instances where female employees may be denied important benefits and opportunities, such as training, mentorship, and advancement opportunities. Similarly, if an employee has to be kept separated from a co-worker because of behavior, that person should probably not be a part of the organization.
• Although the Sellars case involved male-on-female harassment, keep in mind that sexual harassment may occur between members of the same sex, and LGBT+ employees are among the most at risk for sexual harassment.
• Forces in the labor market have made hiring new employees more difficult than ever. The push to hire new workers should not cause employers to let their defenses down. Retaining bad actors may be a short-term solution with long-term negative consequences.
• Although an employer may avoid liability under Title VII for co-worker harassment, keeping harassers around keeps the door open for common law tort claims, which unlike Title VII, may or may not be subject to damages caps.