EEOC-Initiated Litigation - 2023 Edition

48 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP charging party to a hostile work environment when it failed to correct the sexually harassing behavior of her co-worker. The case went to trial, and the court had to weigh substantial evidence regarding the harassing behavior. Ultimately, the court ruled in favor of the employer. Although the EEOC had introduced voluminous evidence of sexually harassing activity, the court found that evidence to be so riddled with inconsistencies and contradictions that it undermined the EEOC’s case. For example, the court noted that: “[Charging party] stated [alleged harasser] made inappropriate comments about her breasts and buttocks every time they worked together. Although she said these were made while co-workers were present, she failed to name any co-workers at any specific time the comments were made.” 148 And in response to the charging party’s claim that her co-worker propositioned her for sex on multiple occasions, the court noted that: “It makes little sense that [charging party] was subjected to this hostile environment, was so intimidated that she felt she could not report it and then approached the harasser and asked for a loan. I find her allegations regarding the propositioning of sex for money to be incredible.” 149 The charging party had also testified that her co-worker had “climbed up onto the [engine cover of the truck], exposed his penis to her, grabbed her right hand off the steering wheel while she was driving at 40-50 miles an hour and made her touch his exposed penis.” 150 But the court noted the heat and physical dimensions of the engine cover would make that difficult, if not impossible, and that her claim that she never lost control of the truck was inconsistent with her testimony that she punched and pushed him. With respect to this instance, the court concluded as follows: “What also strikes the court is the fact that if [alleged harasser] had committed the act once already, would not [charging party] be on high alert or somehow noticing he was again climbing up onto the [engine cover] and taking down his pants? She indicated she did not notice him climbing up a second time. She did not report the incidents when they happened. Again, her story defies logic and I find that the evidence contradicts her testimony.” 151 The court also could not credit the EEOC’s efforts to establish employer liability, holding that it had “failed to produce credible evidence that [charging party] reported the conduct to her supervisors in order to correct the sexual harassment.” 152 The court concluded as follows: “The testimony and facts do not support any of her allegations and in fact contradict the physical possibility that certain acts like the illegal touching in the cab of the truck could have even occurred. While I believe that there was something going on between [charging party] and [alleged harasser], which could have been an inability to work together, the evidence does not rise to the level of a hostile work environment that was so severe and pervasive it caused the constructive discharge of [charging party].” 153 Despite the number of filings alleging sex discrimination in FY 2022, there was just one substantive EEOC sex harassment decision in 2022. But it was an important decision, and one that every employer should be aware of. Specifically, in EEOC v. BNSF Railway Co.,154 the U.S. District Court for the District of Nebraska denied the EEOC’s request for a temporary restraining order (“TRO”) to prevent alleged discriminatory conduct. The EEOC sought an order reinstating an employee, Rena Merker, to work and prohibiting BNSF from engaging in retaliatory action against employees who seek to cooperate with the EEOC in its pending lawsuit against BNSF. Though the District Court ultimately found that the EEOC failed to demonstrate the requisite factors for obtaining a TRO, this decision is important because of the focal basis for the District Court’s denial of the EEOC’s motion. The District Court ruled that because the claim in the pending lawsuit was that Merker was subjected to a sexually hostile work environment, but the TRO request was based on alleged retaliation, it was impossible for the EEOC to demonstrate the likelihood of success factor necessary for relief. Given this inconsistency, the EEOC’s motion failed on its face. In BNSF, Merker, a train conductor, filed a charge of discrimination with the EEOC on January 18, 2018, alleging on behalf of herself and other aggrieved individuals in non-management positions that they had been subjected to a pattern and practice of gender discrimination, sexual harassment, sex discrimination, 148 Id. at *8. 149 Id. at *9. 150 Id. 151 Id. at *10. 152 Id. 153 Id. at *12. 154 EEOC v. BNSF Railway Co., Case No. 8:21-CV-369 (D. Neb. April 28, 2022).