Statistically, long-haul trucking is largely the province of men. Sex notwithstanding, when you contemplate the prototypical trucker, you likely imagine a rugged individual capable of a solo existence living the storied “trucker lifestyle.” For men, life behind the wheel can be hard; for women, it’s even tougher. According to the American Trucking Association, in 2017, women made up 6.2% of all long-haul truck drivers, a number that was up from just 4.9% in 2008. Often traveling thousands of miles from home for weeks at a time, female drivers must contend with participating in the trucking industry as a vast minority, where sexism, harassment, privacy and personal safety are genuine concerns. Indeed, the fact that women make up such a small percentage of the long-haul work force creates challenges not only for the drivers themselves, but for the trucking companies as well. With the industry constantly seeking to expand its work force, including hiring more female drivers, how trucking companies develop and implement policies to ensure women are provided a safe and productive work environment is critical to long term success.
From a legal prospective, discrimination based on sex which creates a hostile or abusing working environment violates Title VII of the Civil Rights Act of 1964. To establish a claim of hostile work environment, a plaintiff must prove 1) that she is member of a protected group; 2) that she was the subject of unwelcome sexual advances; 3) that there was a causal nexus between the harassment and the protected group; 4) that harassment affected a term or condition or privilege of employment; and 5) that her employer knew or should have known of the harassment and failed to take prompt and effective remedial action. Importantly, as regards prong 4 of the analysis, in order to show that the harassment affected a term or condition of employment, “the conduct must be so severe or pervasive to create an environment that a reasonable person would find hostile or abusive and that actually altered the condition of the victim’s employment.”
In 2015, three female truck drivers filed a lengthy complaint in Federal Court alleging a long-haul trucking company, CRST Expedited, maintained various policies that created a hostile work environment for female drivers. The complaint asserted that each of the female drivers endured lewd comments, unwanted touching, and threatening behavior from male co-drivers while on the road. The allegations against the accused harassers were vulgar and reprehensible, going so far as to compel plaintiffs to carry weapons to fend off sexual assaults by multiple co-drivers.
According to the plaintiffs, the incidents stemmed from the company’s practice of teaming two drivers at a time, so that one can always be driving while the other rests in the cab — a common practice in the trucking industry. While plaintiffs’ allegations of harassment were pervasive, evidence indicated that for each complaint lodged, CRST separated plaintiffs from the drivers who allegedly harassed them and never paired them together again. In addition, CRST addressed each complaint by designating the individual male drivers as “male only,” ensuring they wouldn’t co-drive with women. Notwithstanding, plaintiffs stated that the company should have taken bolder steps to prevent future harassment by other male drivers. The women indicated that CRST gave lip service to their complaints and deliberately undertook inadequate, biased investigations only to that find nothing inappropriate had happened.
In deciding the case (July 15, 2019), the Court indicated that the law doesn’t require employers to anticipate their employees’ misconduct when those employees have given no indication that they would otherwise engage in misconduct. Rather, an employer’s liability turns on whether the employer was aware of the conduction and whether it took appropriate action to remedy the circumstances in a timely and appropriate manner. The factors to consider when assessing the reasonableness of an employer’s action including the amount of time that elapsed between the notice and the remedial action, the options available to the employer and whether or not the measures ended the harassment. Further, proper remedial action need only be reasonably calculated to stop the harassment and remedial action that does not end the harassment can still be adequate if it is reasonably calculated to do so.
In the CRST case, the Court found that plaintiffs failed to demonstrate a genuine issue of material fact that CRST’s response to their complaints of harassment was negligent. As such, CRST’s policies and enforcement procedures withstood judicial scrutiny and plaintiffs’ claims were dismissed on summary judgment. The Court found it persuasive that there was no evidence that after plaintiffs made a harassment complaint against a co-driver and CRST responded, that plaintiffs continued to be harassed by that same co-driver. To the contrary, the evidence showed that the plaintiffs were never re-paired with the accused driver and, in most cases never even saw him again. Thus, the Court found that CRST’s response was adequate and it was not reasonably foreseeable that plaintiffs would continue to be harassed by the next co-driver. There was also no evidence to suggest any of the alleged harassers had previously harassed another female driver.
In looking at the CRST case, it is important to emphasize that the creation and uniform implementation of policy and procedure to protect female drivers is of vital importance in the trucking industry. Long-haul companies must have established protocols and investigation procedures in place to ensure that allegations of harassment in the workplace are promptly and thoroughly investigated. Those investigations must be detailed, well documented and, ideally include participation of at least one female staff member to minimize unintentional bias. Moreover, in cases of corroborated harassment, remedial actions taken by the company must leave no doubt as to the company’s goal to immediately and completely stop the harassment. So doing will help ensure that women feel safe in the workplace and promote their increased participation in this predominantly male industry. Should you have any questions regarding the drafting or implementation of Title VII related policies or procedure, please feel free to contact Benjamin Dill at 804-377-1292 (firstname.lastname@example.org) or Steve Setliff at 804-377-1261 (email@example.com).