Nuts & Bolts of HWE Cases (1) (Part 1 of 4)

Nuts & Bolts of Hostile Work Environment Cases NELA/NY Fall 2023 Conference

Friedman & Houlding Llp

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Friedman: Outline of Discussion of Federal State and City Hostile Work Environment 9 Law.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Cases Orders, Motions and Declarations 18.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Beckner-Rendano: Order on Motion to Dismiss 19.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Sellars Order re Motion for Decertification 31.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Aviles - Order Denying MTD Class Allegations 63.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Aviles - Class Settlement Prelim Approval 76.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Miramontes v. Peraton, Inc., 2023 U.S. Dist. LEXIS 98024 86.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: MOL - Motion to proceed under pseudonym 94.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Motion for Leave to File Complaint Pseudonymously 108.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Declaration in support of motion to file pseudonymously 112.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Staples - Plaintiff's Filing re 42 USC 1981 vs Title VII 114.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Declaration of Witness 120.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Declaration Witness 122.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Common Diagnoses in Hostile Work Environment Cases 124.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Difficult Diagnoses 145.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Prognosis 165.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Examination of Dr. Goldstein 175.

Table of Contents the new NYSHRL law Law

Comparison of key elements of hostile work environment claims under federal, NYC and the new NYSHRL law. §296(1)(h): 1. It shall be an unlawful discriminatory practice: (h) For an employer, licensing agency, employment agency or labor organization to subject any individual to harassment because of an individual's age, race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, status as a victim of domestic violence, or because the individual has opposed any practices forbidden under this article or because the individual has filed a complaint, testified or assisted in any proceeding under this article, regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims. Such harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual's membership in one or more of these protected categories. The fact that such individual did not make a complaint about the harassment to such employer, licensing agency, employment agency or labor organization shall not be determinative of whether such employer, licensing agency, employment agency or labor organization shall be liable. Nothing in this section shall imply that an employee must demonstrate the existence of an individual to whom the employee's treatment must be compared. It shall be an affirmative defense to liability under this subdivision that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences.

§300: Construction. The provisions of this article shall be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed. Exceptions to and exemptions from the provisions of this article shall be construed narrowly in order to maximize deterrence of discriminatory conduct.

Severe or Pervasive. Federal: Yes. NYSHRL §296(1)(h): Becker-Rendano v. NYS Off. of Info. Tech. Svcs, 904264-20 (Alb. Sup., March, 2, 2021)(Patrick Sorsby for Plaintiff), demonstrates how §296(1)(h) has eliminated distinctions between hostile work environment and retaliation claims, on the one hand, and discrimination claims: both are now evaluated under the single standard set forth in the amendment, whether Defendant has subjected Plaintiff: “to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories,” which now include persons who have engaged in protected activity. The decision is unavailable online so it is included in the materials following this table. For the sake of brevity, it is questionable whether the hostile work environment allegations would have survived under the previous sufficiently severe or pervasive to interfere with Plaintiff’s ability to perform her job. The court denied the motion to dismiss the hostile work environment alleged in amended complaint because: “plaintiff has adequately alleged that defendant engaged in conduct which subjected her to inferior terms, conditions or privileges of her employment because of her disability.” Id. at 8. The court held that Defendant’s argument that the alleged conduct was mere petty slights or trivial inconveniences could not be considered on a MTD because it was an affirmative defense. Id. See also Cunliffe v. Sandberg, 2022 NY Slip Op 32035(U), ¶ 4 (Sup. Ct.)(under the amended NYSHRL just defendant’s comment about the color of plaintiff nanny's face and her encouragement of her son to make similar comments on several occasions are sufficient to state a claim for hostile work environment.) The Becker-Rendano court also denied the motion to dismiss Plaintiff’s retaliation claim. Id. at 9. The court found that by including among the protected classes which may not be harassed in §296(1)(h)persons who had engaged in protected activity, the Legislature had overruled decisions such as “Forrest v. Jewish Guild for the Blind, 3 NY3d at 313,” which had implied under §296(1)(e) a requirement that Plaintiff suffer an adverse employment action. §296(1)(h) is the first statute to define the substantive elements of a hostile work environment. Paired with §300, it effectively rearranges both the substantive law of hostile work environments and retaliation, and reduces them to the answer to the simple question posed in §296(1)(h). Courts are already noting that "the effect of [§300] is to render the standard for claims [brought under the NYSHRL] closer to the standard under the NYCHRL." Cherry v. N.Y.C. Hous. Auth., 564 F. Supp. 3d 140, 164 n.13 (E.D.N.Y. 2021).. City HRL: Experience has shown that there is a wide spectrum of harassment cases falling between "severe or pervasive" on the one hand and a "merely" offensive utterance on the other. 22 The City HRL is now explicitly designed to be broader and more remedial than the Supreme Court's "middle ground," a test that had sanctioned a significant spectrum of conduct demeaning to women. With this broad remedial purpose in mind, we conclude that questions of "severity" and "pervasiveness" are applicable to consideration of the scope of permissible damages, but not to the question of underlying liability. [D]efendants can still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider "petty slights and trivial inconveniences." Williams v. N.Y.C. Hous. Auth., 2009 NY Slip Op 440, ¶ 15, 61 A.D.3d 62, 76, 80, 872 N.Y.S.2d 27, 38, 41 (App. Div. 1st Dept.).

Federal NYSHRL §296(1)(h) City HRL Severe or Yes Becker-Rendano v. NYS Off. of Info. Tech. Svcs, 904264-20 (Alb. Sup., Experience has shown that there is a wide Pervasive March, 2, 2021)(Patrick Sorsby for Plaintiff), demonstrates how spectrum of harassment cases falling between §296(1)(h) has eliminated distinctions between hostile work "severe or pervasive" on the one hand and a discrimination claims: both are now evaluated under the single The City HRL is now explicitly designed to be standard set forth in the amendment, whether Defendant has broader and more remedial than the Supreme subjected Plaintiff: “to inferior terms, conditions or privileges of Court's "middle ground," a test that had employment because of the individual’s membership in one or more sanctioned a significant spectrum of conduct of these protected categories,” which now include persons who have demeaning to women. With this broad engaged in protected activity. The decision is unavailable online so it remedial purpose in mind, we conclude that is included in the materials following this table. For the sake of questions of "severity" and "pervasiveness" are brevity, it is questionable whether the hostile work environment applicable to consideration of the scope of allegations would have survived under the previous sufficiently permissible damages, but not to the question severe or pervasive to interfere with Plaintiff’s ability to perform her of underlying liability.

job. The court denied the motion to dismiss the hostile work environment alleged in amended complaint because: “plaintiff has [D]efendants can still avoid liability if they adequately alleged that defendant engaged in conduct which prove that the conduct complained of consists subjected her to inferior terms, conditions or privileges of her of nothing more than what a reasonable victim employment because of her disability.” Id. at 8. The court held that of discrimination would consider "petty slights Defendant’s argument that the alleged conduct was mere petty and trivial inconveniences."

slights or trivial inconveniences could not be considered on a MTD because it was an affirmative defense. Id. See also Cunliffe v. Williams v. N.Y.C. Hous. Auth., 2009 NY Slip Op Sandberg, 2022 NY Slip Op 32035(U), ¶ 4 (Sup. Ct.)(under the 440, ¶ 15, 61 A.D.3d 62, 76, 80, 872 N.Y.S.2d amended NYSHRL just defendant’s comment about the color of 27, 38, 41 (App. Div. 1st Dept.) plaintiff nanny's face and her encouragement of her son to make similar comments on several occasions are sufficient to state a claim for hostile work environment.) The Becker-Rendano court also denied the motion to dismiss Plaintiff’s retaliation claim. Id. at 9. The court found that by including among the protected classes which may not be harassed in §296(1)(h)persons who had engaged in protected activity, the Legislature had overruled decisions such as “Forrest v. Jewish Guild for the Blind, 3 NY3d at 313,” which had implied under §296(1)(e) a requirement that Plaintiff suffer an adverse employment action.

§296(1)(h) is the first statute to define the substantive elements of a hostile work environment. Paired with §300, it effectively rearranges both the substantive law of hostile work environments and retaliation, and reduces them to the answer to the simple question posed in §296(1)(h). Courts are already noting that "the effect of [§300] is to render the standard for claims [brought under the NYSHRL] closer to the standard under the NYCHRL." Cherry v. N.Y.C.

Hous. Auth., 564 F. Supp. 3d 140, 164 n.13 (E.D.N.Y. 2021).

Subjectively Offensive: Reasonable Person Offensive. Yes, but see Meritor.: Yes. It would be worthwhile to use §300 and §296(1)(h) to demand that courts do away with the double standard applied only in sexual harassment cases, and only when the Plaintiff is a woman. This was the contribution of the Meritor Court. She is required to prove that she did not welcome the sexual harassment, whereas victims of racial harassment, disability harassment, religious harassment and all other forms of harassment based on protected categories need only prove that they found the hostile work environment subjectively offensive.: a reasonable victim of discrimination with the same protected characteristic or characteristics would consider [more than] petty slights or trivial inconveniences.. Yes: what a reasonable victim of discrimination would consider [more than] "petty slights and trivial inconveniences.".

Subjectively Offensive: Strict Liability for Supervisor Harassment. Yes, but see Meritor.: 1) Vance supervisor harassment culminating in a tangible employment action. Llampallas v. Mini-Circuits, Inc., 163 F.3d 1236, 1247 (11th Cir. Fla. 1998)(“[T]he fact that the harasser was the decision maker for the tangible employment action gives rise to an inference that the harasser's discriminatory animus motivated that action.”); 2) Proxy liability. Faragher v. City of Boca Raton, 524 U.S. 775, 789, 118 S. Ct. 2275, 2284 (1998)(Where the harasser was “president of the corporate employer [he] was indisputably within that class of an employer organization’s officials who may be treated as the organization’s proxy.”).. It would be worthwhile to use §300 and §296(1)(h) to demand that courts do away with the double standard applied only in sexual harassment cases, and only when the Plaintiff is a woman. This was the contribution of the Meritor Court. She is required to prove that she did not welcome the sexual harassment, whereas victims of racial harassment, disability harassment, religious harassment and all other forms of harassment based on protected categories need only prove that they found the hostile work environment subjectively offensive.: NYS law also recognizes strict liability under the Proxy doctrine. Sletten v. LiquidHub, Inc., 2014 U.S. Dist. LEXIS 94697, at *31 (S.D.N.Y. July 10, 2014)(“Brassington, a proxy of LiquidHub itself, harbored animus against Sletten based on his sexual orientation); Matter of Winkler v. N.Y. State Div. of Human Rights, 2009 NY Slip Op 904, ¶ 1, 59 A.D.3d 1055, 1056, 872 N.Y.S.2d 797, 798 (App. Div. 4th Dept.)(accord construing NYSHRL). Yes: §8-107 13. B. (1) An employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision 1 or 2 of this section only where: (1) The employee or agent exercised managerial or supervisory responsibility.

Subjectively Yes, but see Meritor. It would be worthwhile to use §300 and §296(1)(h) to demand that Yes Offensive courts do away with the double standard applied only in sexual harassment cases, and only when the Plaintiff is a woman. This was the contribution of the Meritor Court. She is required to prove that she did not welcome the sexual harassment, whereas victims of racial harassment, disability harassment, religious harassment and all other forms of harassment based on protected categories need only prove that they found the hostile work environment subjectively offensive.

Reasonable Yes a reasonable victim of discrimination with the same protected what a reasonable victim of discrimination Person characteristic or characteristics would consider [more than] petty would consider [more than] "petty slights and Offensive slights or trivial inconveniences. trivial inconveniences."

Strict Liability 1) Vance supervisor harassment NYS law also recognizes strict liability under the Proxy doctrine. §8-107 13. B. (1) An employer shall be liable for Supervisor culminating in a tangible Sletten v. LiquidHub, Inc., 2014 U.S. Dist. LEXIS 94697, at *31 (S.D.N.Y. for an unlawful discriminatory practice based Harassment employment action. Llampallas v. July 10, 2014)(“Brassington, a proxy of LiquidHub itself, harbored upon the conduct of an employee or agent Mini-Circuits, Inc., 163 F.3d 1236, animus against Sletten based on his sexual orientation); Matter of which is in violation of subdivision 1 or 2 of this 1247 (11th Cir. Fla. 1998)(“[T]he Winkler v. N.Y. State Div. of Human Rights, 2009 NY Slip Op 904, ¶ 1, section only where: (1) The employee or fact that the harasser was the 59 A.D.3d 1055, 1056, 872 N.Y.S.2d 797, 798 (App. Div. 4th agent exercised managerial or supervisory decision maker for the tangible Dept.)(accord construing NYSHRL) responsibility employment action gives rise to an inference that the harasser's discriminatory animus motivated that action.”); 2) Proxy liability.

Faragher v. City of Boca Raton, 524 U.S. 775, 789, 118 S. Ct. 2275, 2284 (1998)(Where the harasser was “president of the corporate employer [he] was indisputably within that class of an employer organization’s officials who may be treated as the organization’s proxy.”).

Supervisor Faragher/Ellerth: Employer is If courts follow the line of cases holding that supervisor liability Strict liability Harassment liable for harassment by Vance standards are the same under Title VII and the NYSHRL, by Generally supervisor unless it can prove the prohibiting courts from relying on the absence of a complaint by affirmative defense that 1) it had Plaintiff to reject liability, §296(1)(h) will have a significant positive a policy against harassment impact. The defense bar in several blogs on the amendment where an employee could acknowledges that the new language rules out the F/E defense, and a complain without fear of couple of courts have reached the same conclusion in dictum. See retaliation and 2) the employee Ortiz v. Hempstead Union Free Sch. Dist., No. 17-CV-2990 (DRH)(AYS), failed to utilize the policy. 2021 U.S. Dist. LEXIS 38333, at *8 n.1 (E.D.N.Y. Mar. 1, As the Court held in Vance, Chauhan v. MM Hotel Mgmt. LLC, No. 18-CV-5963 (DRH)(SIL), 2019 negligence is always available as U.S. Dist. LEXIS 199894, at *17 n.7 (E.D.N.Y. Nov. 18, 2019)(same).

a basis for liability in the case of supervisor harassment. That However, as the NY COA explained in Forrest v. Jewish Guild for the includes harassment perpetrated Blind, 3 N.Y.3d 295, 311-12, 786 N.Y.S.2d 382, 395, 819 N.E.2d 998, by supervisors who plainly meet 1011 (2004) the standard of liability for supervisor and coworker the Vance standard. harassment under the NYCHRL has always been whether the Negligence is usually a more employer acquiesced in, or condoned, the harassment. Id. This was flexible Plaintiff-friendly doctrine, the harsh construction the COA accorded §296 which was silent on because in using the Vance the standard for employer liability.

supervisor F/E paradigm, courts tend to put Plaintiffs on trial for So long as the Plaintiff continues to have the burden of proving the failing properly to utilize the employer acquiesced, it makes no difference whether the employer is complaint mechanism. The only prohibited by the amendment from using the F/E affirmative defense question under the negligence on which it has the burden. It would have no reason to plead the doctrine is whether the employer defense.

owed a duty to prevent the harassment and whether it did Yet one could imagine a court inferring §300 and the absence of a enough to prevent it, by complaint may not be determinative language of §296(1)(h), as the apprehending the danger of legislative repudiation of the harsh construction NY judges accorded harassment and taking §296, which like Title VII was silent on the standard of liability. §300 reasonable steps to prevent it requires a liberal construction “regardless of whether federal civil from happening. For example, rights laws, including those laws with provisions worded comparably under F/E, a complaint to a low to the provisions of this article, have been so construed.” This can be level supervisor may be deemed understood as legislative overruling of standards less generous that inadequate because the Title VII, and requiring standards that are at least as generous. Cf.

Employee Handbook mandates a Williams v. N.Y.C. Hous. Auth., 2009 NY Slip Op 440, ¶ 4, 61 A.D.3d 62, complaint to a Manager, Human 66, 872 N.Y.S.2d 27, 31 (App. Div. 1st Dept.)(“federal However under a negligence law cannot fall’”). standard, such complaints are often deemed to put the employer on actual or constructive notice.

Coworker Negligence “Acquiescence or condonation,” which the courts frequently call Negligence based on actual or constructive harassment more demanding than negligence. There are two differences. Actual knowledge liability knowledge is required; constructive knowledge does not suffice. However State law offers one advantage: It is the only liability §8-107 13. B. (2) The employer knew of the standard where an employer’s conduct evincing condonation after employee's or agent's discriminatory conduct, the harassment will subject it to liability. See Father Belle Cmty. Ctr. v. and acquiesced in such conduct or failed to N.Y. State Div. of Human Rights, 221 A.D.2d 44, 56, 642 N.Y.S.2d 739, take immediate and appropriate corrective 748 (App. Div. 4th Dept. 1996)(“Condonation may be established by action; an employer shall be deemed to have knowledge acquired after the fact, combined with insufficient knowledge of an employee's or agent's investigation and corrective action [citations omitted]. Here, although discriminatory conduct where that conduct detailed complaints about Caruso's conduct were related to the was known by another employee or agent who Board of Directors, the Board as a whole undertook no serious exercised managerial or supervisory investigation or meaningful action on behalf of the complainants. responsibility; or Instead, it took a series of actions that exacerbated complainants' (3) The employer should have known of injuries. The Board had failed to establish any policy concerning the employee's or agent's discriminatory sexual harassment or mechanisms to allow the complainants to conduct and failed to exercise reasonable pursue harassment grievances in confidence.”) diligence to prevent such discriminatory conduct.

3d Party harassment liability: Punitive Damages. Holds employers liable in negligence where they are aware of third party harassment and fail to take reasonable steps to protect employees. Freeman v. Dal-Tile Corp., 750 F.3d 413, 423 (4th Cir. 2014)(“an employer is liable under Title VII for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed "to take prompt remedial action reasonably calculated to end the harassment."): Kolstad v. American Dental Ass'n, 527 U.S. 526, 529-530, 119 S.Ct. 2118, 2121 (U.S. 1999)(“Punitive damages are limited, however, to cases in which the employer has engaged in intentional discrimination and has done so ‘with malice or with reckless indifference to the federally protected rights of an aggrieved individual.’ Rev. Stat. § 1977, as amended, 42 U.S.C. § 1981a(b)(1).”). Yes. See Swiderski v. Urban Outfitters, Inc., No. 14-CV-6307 (JPO), 2015 U.S. Dist. LEXIS 72291, at *9 (S.D.N.Y. June 4, 2015)(relying on the same negligence standard as applied under Title VII): NYS common law standard: whether the wrongdoer has engaged in discrimination with willful or wanton negligence, or recklessness, or a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard (does not require intentional discrimination as does Title VII). The City Law has no provision dealing with pure third-party harassment situations like customer harassment of employees, although it does expressly hold employers liable for violations by agents and independent contractors. See § 8-107. 1. “Employment. It shall be an unlawful discriminatory practice: (a) For an employer or an employee or agent thereof, . . .” and §8-107 13. c. “An employer shall be liable for an unlawful discriminatory practice committed by a person employed as an independent contractor, other than an agent of such employer, to carry out work in furtherance of the employer's business enterprise only where such discriminatory conduct was committed in the course of such employment and the employer had actual knowledge of and acquiesced in such conduct. Nonetheless, because like language in Title VII is held to make employers liable in negligence for harassment committed by third parties such as customers, such liability should be possible, since Williams holds that Title VII provides a floor beneath which the City Law’s protections cannot fall. Williams v. N.Y.C. Hous. Auth., 2009 NY Slip Op 440, ¶ 4, 61 A.D.3d 62, 66, 872 N.Y.S.2d 27, 31 (App. Div. 1st Dept.): Same as NYSHRL. Chauca v. Abraham, 2017 NY Slip Op 08158, ¶ 5, 30 N.Y.3d 325, 334, 67 N.Y.S.3d 85, 91, 89 N.E.3d 475, 481 When suing the employer on a theory of vicarious liability must the harasser or manager who knew of it and failed to act be senior enough that his actions are imputed to the employer as required by Kolstad..

3d Party Holds employers liable in Yes. See Swiderski v. Urban Outfitters, Inc., No. 14-CV-6307 (JPO), The City Law has no provision dealing with harassment negligence where they are aware 2015 U.S. Dist. LEXIS 72291, at *9 (S.D.N.Y. June 4, 2015)(relying on pure third-party harassment situations like liability of third party harassment and fail the same negligence standard as applied under Title VII) customer harassment of employees, although to take reasonable steps to it does expressly hold employers liable for protect employees. Freeman v. violations by agents and independent Dal-Tile Corp., 750 F.3d 413, 423 contractors. See § 8-107. 1. “Employment. It (4th Cir. 2014)(“an employer is shall be an unlawful discriminatory practice: (a) liable under Title VII for third For an employer or an employee or agent parties creating a hostile work thereof, . . .” and §8-107 13. c. “An employer environment if the employer shall be liable for an unlawful discriminatory knew or should have known of practice committed by a person employed as the harassment and failed "to an independent contractor, other than an take prompt remedial action agent of such employer, to carry out work in reasonably calculated to end the furtherance of the employer's business harassment.") enterprise only where such discriminatory conduct was committed in the course of such employment and the employer had actual knowledge of and acquiesced in such conduct.

Nonetheless, because like language in Title VII is held to make employers liable in negligence for harassment committed by third parties such as customers, such liability should be possible, since Williams holds that Title VII provides a floor beneath which the City Law’s protections cannot fall. Williams v. N.Y.C. Hous.

Auth., 2009 NY Slip Op 440, ¶ 4, 61 A.D.3d 62, 66, 872 N.Y.S.2d 27, 31 (App. Div. 1st Dept.) Punitive Kolstad v. American Dental Ass'n, NYS common law standard: whether the wrongdoer has engaged in Same as NYSHRL. Chauca v. Abraham, 2017 NY damages are limited, however, to to amount to such disregard (does not require intentional cases in which the employer has discrimination as does Title VII) When suing the employer on a theory of engaged in intentional vicarious liability must the harasser or manager discrimination and has done so who knew of it and failed to act be senior ‘with malice or with reckless enough that his actions are imputed to the indifference to the federally employer as required by Kolstad.

protected rights of an aggrieved individual.’ Rev. Stat. § 1977, as amended, 42 U.S.C. § 1981a(b)(1).”)

Minimum Number of Employees: Damage Caps. 15 (except under 42 USC § 1981 no minimum): Yes, (except under 42 USC § 1981 none). One: None. One: None.

Minimum Number of Employees: Who can sue. 15 (except under 42 USC § 1981 no minimum): Employees. One: Employees, independent contractors, consultants, vendors, subcontractors, and persons providing services pursuant to a contract.

Minimum Number of Employees: Who can be sued. 15 (except under 42 USC § 1981 no minimum): Employer only. One: Employer, aider and abettor who participated in creating hostile work environment (includes coworkers), individual with ownership interest or the power to do more than carry out personnel decisions made by others. Tromblee v. New York, No. 1:19-cv-00638 (BKS/CFH), 2023 U.S. Dist. LEXIS 51184, at *47 (N.D.N.Y. Mar. 27, 2023).. One: Employer, employees (express liability in statute), agents (same), and anyone who can be sued under State law. Fellah v. City Univ. of N.Y., 2022 U.S. Dist. LEXIS 179318, at *21-22 (S.D.N.Y. Sep. 30, 2022).

Minimum 15 (except under 42 USC § 1981 One One Number of no minimum) Damage Caps Yes, (except under 42 USC § 1981 None None none) Who can sue Employees Employees, independent contractors, consultants, vendors, subcontractors, and persons providing services pursuant to a contract Who can be Employer only Employer, aider and abettor who participated in creating hostile work Employer, employees (express liability in sued environment (includes coworkers), individual with ownership interest statute), agents (same), and anyone who can or the power to do more than carry out personnel decisions made by be sued under State law. Fellah v. City Univ. of others. Tromblee v. New York, No. 1:19-cv-00638 (BKS/CFH), 2023 N.Y., 2022 U.S. Dist. LEXIS 179318, at *21-22 U.S. Dist. LEXIS 51184, at *47 (N.D.N.Y. Mar. 27, 2023). (S.D.N.Y. Sep. 30, 2022)

Joshua Friedman (10 min).

Outline of Discussion of Federal State and City Hostile Work.

Environment Law.

There is a table which compares the substantive and liability standard.

under federal, state and NYC law in your materials..

I am going to spend time first on the remarkable amendment to our State.

law, which takes us further than even the City Law concerning employer.

liability, and then focus on two substantive aspects of 296(1)(h) which.

dramatically change the law on retaliation and hostile work environment in.

NYS..

296(1)(h) Cleans up The Morass of Thinking Caused by Gap Filling.

Title VII and state law are silent on harassment: 296(1)(a) states: It shall be.

illegal for an employer because of an individual's [protected class] to refuse.

to hire or employ or to bar or to discharge from employment such individual.

or to discriminate against such individual in compensation or in terms,.

conditions or privileges of employment..

Federal Courts assumed congress meant to prohibit harassment as.

conduct which violated the “terms conditions and privileges,” language, but.

because the Court was imposing liability where Congress had not provided.

rules, there was a need to distinguish for which acts the employer should.

be liable. In Meritor the Court engaged in some gap filling. The Defendant.

argued that congress only intended to address tangible actions. The Court.

disagreed, pointing out that making a workplace hostile due to sex clearly.

altered the terms conditions and privileges under which the Plaintiff worked..

The Court agreed that agency principles applied, but refused to set a.

standard, other than stating actual knowledge by the employer and failure.

to act (negligence), would be actionable. In F/E the Court created a.

confusing set of rules which were intended to be helpful to victims of.

supervisor harassment, such as when an employer could be held liable.

absent proof of fault..

The key point is that none of this federal case law about when the employer: is liable would have been necessary had Congress simply written:.

NY took a similar route in concluding that terms or conditions encompassed.

harassment but it was up to the courts to decide the question of liability..

In 1991 when the City Council created the new NYCHRL it apparently did.

not attempt to insert the word harassment into the prohibitory language: “to.

discriminate against such individual in compensation or in terms, conditions.

or privileges,” which tracked federal and state language. The City Counsel.

simply created strict liability for harassment by someone with supervisory.

powers, and essentially negligence for others. You can read them in the.

table..

It is important to know that the courts ignored the plain language of the new.

NYCHRL which imposed strict liability for supervisor harassment, among.

other things for 15 years. In 2005 the Council passed the Restoration Act.

which forced courts to enforce the NYCHRL as written. We cannot let that.

happen to our new law which advances equality in so many ways and.

makes plain that an employer is liable when its employees work in a hostile.

work environment..

No matter. The courts dutifully ignored the new language holding it.

equivalent to federal law. In 2005 the Council passed the Restoration Act.

(RA), wholly the brainchild of Craig Gurian, which finally brought fealty to.

the intent of the Council. 25 years in the desert. But the RA left the different.

liability standards in place for harassment by employees of different.

authority. There was no rewrite of the main prohibitory statute to say: to.

It shall be illegal for an employer because of an individual's [protected class] to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against or harass such individual in compensation or in terms, conditions or privileges of employment. In Father Bell the 4th Dpt clarified the distinction between federal and NYS law: Under New York law, in order to recover against an employer, the complainant must demonstrate that the employer acquiesced in the discriminatory conduct or subsequently condoned it. Father Belle Cmty. Ctr.

v. N.Y. State Div. of Human Rights, 221 A.D.2d 44, 53-54, 642 N.Y.S.2d

739, 746 (App. Div. 4th Dept. 1996)

discriminate against or harass such individual in compensation or in terms,: conditions or privileges..

discriminate against or harass such individual in compensation or in terms,: Now, finally, there is a statute which expressly makes employers.

discriminate against or harass such individual in compensation or in terms,: liable for harassment: 296(1)(h).

discriminate against or harass such individual in compensation or in terms,: 296(1)(h) lifted the cloud of federal and State, and even City thinking,.

discriminate against or harass such individual in compensation or in terms,: which all resulted from the failure of Congress to expressly prohibit.

discriminate against or harass such individual in compensation or in terms,: harassment. We need to lift that cloud from our own thinking..

1. It shall be an unlawful discriminatory practice:.

(a) For an employer or licensing agency, because of an individual's.

age, race, creed, color, national origin, citizenship or immigration.

status, sexual orientation, gender identity or expression, military.

status, sex, disability, predisposing genetic characteristics, familial.

status, marital status, or status as a victim of domestic violence, to.

refuse to hire or employ or to bar or to discharge from employment such.

individual or to discriminate against such individual in compensation or.

in terms, conditions or privileges of employment..

Now, harassment is defined in a separate subsection of 296, and it states.

that (1) it shall be an unlawful discriminatory practice: (h) For an employer ..

. . to subject any individual to harassment.

Section 296 Unlawful discriminatory practices (1)(a) still says what it has always said, and but for the addition of 296(1)(h) the liability standards would remain the same: because of an individual's [protected category] or because the individual [has engaged in protected activity] regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims. Such harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual's membership in one or more of these protected categories. The fact that such individual did not make a complaint about the harassment to such employer. . . shall not be determinative of whether such employer . . . shall be liable.

Nothing in this section shall imply that an employee must demonstrate the existence of an individual to whom the employee's treatment must be compared. It shall be an affirmative defense to liability under this subdivision that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences.

A significant purpose of the amendment is to remove the reasoning—no.

prohibition of harassment—which courts assumed required them to create.

rules of liability, as well as liberally defining the elements of a hostile work.

environment..

Read together §300 and §296(1)(h) mandate employer liability for any.

harassment as defined by §296(1)(h)..

§300 states that: The provisions of this article shall be construed liberally.

for the accomplishment of the remedial purposes thereof, regardless of.

whether federal civil rights laws, including those laws with provisions.

worded comparably to the provisions of this article, have been so.

construed..

It goes on to require that: Exceptions to and exemptions from the.

provisions of this article shall be construed narrowly in order to maximize.

deterrence of discriminatory conduct..

Focusing solely on liability, the important part is the Exceptions clause..

Now that the Legislature has created a separate subsection defining.

harassment and making it illegal in employment, this is an injunction to.

jealously protect our new rights—which we failed to do after passage of the.

1991 NYCHRL. It also provides us the means which is a clear statement of.

the Legislature on how the new subsection should be construed: narrowly.

in order to maximize deterrence of discriminatory conduct. In other words,.

just exactly as we wrote it..

The first clause of §300 is an instruction to construe similar provisions to.

federal law as stated, however, §296(1)(f) is not similar to any federal law..

Changes to Substantive Provisions Which Support Employer Liability.

The changes to the substantive provisions suggest that the Legislature.

sought radical change. Removal of the severe or pervasive standard,.

and the affirmative defense that the Plaintiff didn’t complain. Don’t.

even think about a F/E defense is how the defense bar and courts (in.

dictum) are interpreting the “didn’t complain” clause. That makes no sense.

if distinctions between supervisor and coworker liability have been.

eliminated. It is more likely that the Legislature was simply sick of seeing.

victims treated as criminals for not complaining. The complaint or lack: thereof could be just as relevant under a negligence analysis, it need not.

victims treated as criminals for not complaining. The complaint or lack: reference F/E..

victims treated as criminals for not complaining. The complaint or lack: The employer’s only affirmative defense the harassment did not rise above.

victims treated as criminals for not complaining. The complaint or lack: the level of what a reasonable victim of discrimination with the same.

victims treated as criminals for not complaining. The complaint or lack: protected characteristic or characteristics would consider petty slights.

victims treated as criminals for not complaining. The complaint or lack: or trivial inconveniences. Stronger than NYCHRL..

victims treated as criminals for not complaining. The complaint or lack: Becker, which I’ll discuss in a few minutes, illustrates how the addition of.

victims treated as criminals for not complaining. The complaint or lack: “with the same protected characteristic or characteristics” changes the.

victims treated as criminals for not complaining. The complaint or lack: analysis: the court and jury is required to walk a mile in the Plaintiff’s shoes..

victims treated as criminals for not complaining. The complaint or lack: Slights can become less petty if you are disabled..

victims treated as criminals for not complaining. The complaint or lack: Such harassment is an unlawful discriminatory practice when it subjects.

victims treated as criminals for not complaining. The complaint or lack: an individual to inferior terms, conditions or privileges of employment.

victims treated as criminals for not complaining. The complaint or lack: because of the individual's membership in one or more of these protected.

victims treated as criminals for not complaining. The complaint or lack: categories..

victims treated as criminals for not complaining. The complaint or lack: The Courts are already very familiar with that language from the RA, which.

victims treated as criminals for not complaining. The complaint or lack: like §300 instructed courts to accord at least as favorable a construction to.

victims treated as criminals for not complaining. The complaint or lack: similarly worded federal or state law: treated less well ala Williams, federal.

victims treated as criminals for not complaining. The complaint or lack: is a floor beneath which we cannot fall..

victims treated as criminals for not complaining. The complaint or lack: Nothing in this section shall imply that an employee must.

victims treated as criminals for not complaining. The complaint or lack: demonstrate the existence of an individual to whom the employee's.

victims treated as criminals for not complaining. The complaint or lack: treatment must be compared. This could help, may not have been.

victims treated as criminals for not complaining. The complaint or lack: intended to modify the hostile work environment definition but it does and.

victims treated as criminals for not complaining. The complaint or lack: could be useful..

victims treated as criminals for not complaining. The complaint or lack: 296(1)(h) does away with two other burdens of proof Plaintiffs.

victims treated as criminals for not complaining. The complaint or lack: previously carried..

Plaintiff no longer has to prove the hostile work environment was subjectively offensive. Plaintiff wouldn’t be here if it were not subjectively offensive. This should do away with the offensive double standard the Meritor court created where other protected classes just had to show they were offended but women had to prove that they did not welcome the harassment. You still see this, references to how a Plaintiff dressed, does

It recasts Plaintiff’s former burden of proof of “objectively offensive” as an.

affirmative defense, and gives the employer very little wiggle room to.

excuse offensive conduct because it must be judged from the perspective.

of the Plaintiff in the protected class..

Further evidence the Legislature sought radical change is that.

the definition of a hostile work environment effectively overrules the Court.

of Appeals construction in Forrest of retaliation, and reduces both hostile.

work environment and retaliation to the answer to the simple question.

posed in §296(1)(h) was the Plaintiff subjected to inferior terms or.

conditions, ie, treated less well than persons outside her protected class..

that welcome unconsented touching. It should be gone but if it comes up under federal law shoot it down, its an equal protection violation, not applied to men. Becker-Rendano v. NYS Off. of Info. Tech. Svcs, 904264-20 (Alb. Sup., March, 2, 2021)(Patrick Sorsby of NELA/NY for Plaintiff, included in materials) is the most important case construing the amendments I found for two reasons. The court agrees that 296(1)(h) legislatively overrules the previous NYS standard for retaliation, and it shows how powerful the addition of “with the same protected characteristic or characteristics” can be.

In Becker Plaintiff was legally blind and hired to serve as accessibility tester. she requested that defendant hire a “Support Services Assistant” (hereinafter SSA) to provide her with Braille interpretation as an accommodation that would enable her to perform the essential functions of the job. Plaintiff received other assurances probably short of promises. This is taken directly from the AC:

25. Plaintiff’s supervisor . . . would demean the Plaintiff by routinely going to her SSA with questions regarding Plaintiff’s Braille translation software and hardware. This is demeaning because they knew that Plaintiff trained the SSA on said equipment and had far superior knowledge of this equipment and software.

26. This is just one of many examples where the Employer treated the Plaintiff like a child who was incapable of making important decisions; and went around her to her SSA with questions and tasks

that were solely within the purview of the Plaintiff to answer. Hostile Work Environment In paragraph 25 above it states “This is demeaning because they knew that Plaintiff trained the SSA on said equipment and had far superior knowledge of this equipment and software.” Ordinarily when you have to explain to the court why a statement was demeaning you are not going to meet severe or pervasive and possibly not get past petty slights or inconveniences. But 296(1)(f) levels the playing field by requiring that the severity of the hostile work environment be measured as experienced by someone in Plaintiff’s shoes: what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences.

Becker was a MTD and the court refused to address the Defendant’s affirmative defense, however when you put yourself in Plaintiff’s shoes, Defendant’s conduct seems much more than petty. Plaintiff had a major disability, and with her accommodation was expected to properly perform the core functions of her job. Being circumvented by your boss when you have so little margin for error takes on a whole different feel when you put yourself in Ms. Becker’s shoes.

Retaliation Becker is that it is the first case to hold that by including in §296(1)(h) among the protected classes which may not be harassed persons who had engaged in protected activity, the Legislature overruled decisions such as Forrest v Jewish Guild for the Blind. 3 NY3d at 313 [2004]; Suricl v Dominican Republic Educ. & Mentoring Project. Inc.. 85 AD3d 1464,1466 [2011]), which required a showing that the plaintiff suffered a “materially adverse change in the terms and conditions of employment.” Among protected classes the amended statute includes: “any individual who has opposed any practices forbidden under this article or because the individual has filed a complaint, testified or assisted in any proceeding under this article.” All Plaintiff had to show was that because of her complaint she was subjected to an inferior term or condition which someone outside of her protected class. When she complained she was ignored and thus treated

differently. The same supervisor who refused to work within the guidelines which had been agreed, allegedly responded to her complaint by suggesting that plaintiff develop a sense of humor about her disability. Id. at It is easy to imagine how this standard could affect the evaluation of employer behavior in retaliation claims. When someone complains to their employer that they are out of printer toner the employer responds by supplying toner. However, when someone complains about a violation of employment discrimination laws, the first thing Human Resources does after the Plaintiff leaves the office is review her personnel file to see what the Defendant has against her. It does not go looking for dirt against employees who have not filed a complaint. A look through Plaintiff’s personnel file would probably not constitute a “materially adverse change in the terms and conditions of employment,” even if something negative was found and used, such as tardies. This is a sea change in the law of retaliation.

Three other cases which evaluate the new hostile work environment are Cunliffe v. Sandberg, 2022 NY Slip Op 32035(U), ¶ 3 (Sup. Ct.)(MTD, Plaintiff was a live out nanny: “Under the NYSHRL's current standard, [mother]'s comment about the color of plaintiff's face and her encouragement of her son to make similar comments on several occasions are sufficient to state a claim for hostile work environment.”) and Weekes v.

Jetblue Airways Corp., No. 21-CV-1965 (MKB), 2022 U.S. Dist. LEXIS 167723, at *36-37 (E.D.N.Y. Sep. 16, 2022)(“Plaintiff alleges that Defendants ‘creat[ed] a hostile work environment’ because of his requests for accommodation for his disability and that Green and Ayala, among others, treated him less well by ignoring his complaints and requests for accommodation,” state a claim under amended NYSHRL).

See also Ndongo v. Bank of China Ltd., No. 22-cv-05896 (RA), 2023 U.S. Dist. LEXIS 31238, at *23-24 (S.D.N.Y. Feb. 24, 2023)(incorrectly concluding that allegedly offensive statements made to African American woman that do not reference race or gender could not meet pleading standard “because of,” when the test is whether persons outside her protected class were treated less well, and citing pre amendment authority) There are a lot of cases stating in dictum that is clear the legislature

intended that the amendment be construed in much the same way as the RA required the NYCHRL be construed, which is encouraging.1 However, we must remind the court of the major difference between the statutes, which is that 296(1)(h) expressly defines an employer as liable for a hostile work environment.

1 Barry v. Macy's, Inc., No. 20-cv-10692 (CM), 2022 U.S. Dist. LEXIS 68611, at *20-21 (S.D.N.Y. Apr. 6, 2022)(granting summary judgment based on Plaintiff’s failure to submit SUF)(essentially dictum); Cherry v. N.Y.C. Hous. Auth., 564 F. Supp. 3d 140, 164 n.13 (E.D.N.Y. 2021)("the effect of which is to render the standard for claims [brought under the NYSHRL] closer to the standard under the NYCHRL." Wellner v.

Montefiore Med. Ctr., No. 17-CV-3479, 2019 U.S. Dist. LEXIS 147844, 2019 WL 4081898, at *5 n.4 (S.D.N.Y Aug. 29, 2019); Ortiz v. Hempstead Union Free Sch. Dist., No. 17-CV-2990 (DRH)(AYS), 2021 U.S. Dist. LEXIS 38333, at *8 n.1 (E.D.N.Y. Mar. 1, 2021)(eliminates severe or pervasive and F/E); Chauhan v. MM Hotel Mgmt. LLC, No. 18-CV-5963 (DRH)(SIL), 2019 U.S. Dist. LEXIS 199894, at *17 n.7 (E.D.N.Y. Nov. 18, 2019)(same);

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CATHY SELLARS, on behalf of herself and all others similarly situated, et al.,: Plaintiffs,. No. C15-117-LTS.

CATHY SELLARS, on behalf of herself and all others similarly situated, et al.,: vs.. MEMORANDUM OPINION AND ORDER.

CATHY SELLARS, on behalf of herself and all others similarly situated, et al.,: CRST EXPEDITED, INC.,.

CATHY SELLARS, on behalf of herself and all others similarly situated, et al.,: Defendant..

In The United States District Court

For The Northern District Of Iowa

Cedar Rapids Division

CATHY SELLARS, on behalf of herself and all others similarly situated, et al., Plaintiffs, No. C15-117-LTS vs. MEMORANDUM OPINION

And Order

____________________

Table Of Contents

A. Motion for Partial Summary Judgment on Retaliation iii. CRST Practices in Responding to

iii. Does the Alleged Policy, Pattern or Practice Involve an Adverse B. Motion for Decertification of Hostile Work Environment

a. Failure to Corroborate Complaints Without

b. Failure to Discipline When Complaints are

c. Failing to Discipline DMs Who Do Not

Promptly Respond Appropriately to

I. Introduction

This case is before me on defendant’s motion (Doc. No. 171) for partial summary judgment on plaintiffs’ retaliation claim and motion (Doc. No. 172) for decertification of the hostile work environment class. Plaintiffs have filed resistances (Doc. Nos. 187, 188)1 and defendant has filed replies (Doc. Nos. 197, 198). I also allowed plaintiffs to file a sur-reply (Doc. No. 201) as to both motions. I find that oral argument is not necessary. See Local Rule 7(c).

1 Pursuant to the court’s order at Doc. No. 183, plaintiffs filed sealed resistances at Doc. Nos. 187 and 188 and redacted versions at Doc. Nos. 191 and 192. I will refer to the redacted versions throughout this order whenever possible.

Ii. Background

Plaintiffs are female truck drivers who assert claims of hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII) against their employer, CRST Expedited, Inc. (CRST). On March 30, 2017, I entered an order certifying the following classes:

a. The Hostile Work Environment Class: All women who

were or are employed as team truck drivers by CRST Expedited, Inc. at any time from October 12, 2013 to the present, who have been subjected to a hostile work environment based on sex as a result of any of the following alleged CRST policies: (1) failing to find their complaints were corroborated without an eyewitness or admission, (2) failing to discipline drivers after complaints were corroborated; and (3) failure to discipline DMs for failing to promptly respond to sexual harassment complaints.

b. The Retaliation Class: All women who were or are employed

as team truck drivers by CRST Expedited, Inc. at any time from October 12, 2013 to the present, who have been subjected to retaliation based on sex as a result of CRST requiring them to exit the truck in response to their complaints of sexual harassment. See Doc. No. 85 at 54-55. I also certified the following issues pursuant to Rule 23(c)(4)(a):

a. As to the Hostile Work Environment Class, whether CRST has any of the

following policies, patterns or practices that create or contribute to a hostile work environment: (1) failing to find their complaints were corroborated without an eyewitness or admission, (2) failing to discipline drivers after complaints were

corroborated and (3) failure to discipline DMs for failing to promptly respond to sexual harassment complaints and

b. As to the Retaliation Class:

Whether CRST has a policy, pattern or practice of retaliating against women complaining of sexual harassment by requiring them to exit the truck except when they are a lead driver or owner-operator Id. at 55. I noted the order could be altered or amended as appropriate before final judgment pursuant to Rule 23(c)(1)(C). Id. at 56. CRST now seeks summary judgment on the retaliation claim and decertification of the hostile work environment class.

Iii. Analysis

A. Motion for Partial Summary Judgment on Retaliation Claim 1. Parties’ Arguments CRST argues that plaintiffs’ retaliation claim fails for four reasons: 1. Plaintiffs cannot show that they suffered any materially adverse employment action. 2. Plaintiffs cannot show that their removal from their trucks was motivated by retaliatory animus against them for complaining of sexual harassment.

3. CRST has legitimate, non-retaliatory reasons for its remedial actions. 4. The record lacks any evidence of pretext. See Doc. No. 171. Plaintiffs argue an unpaid suspension or pay cut in response to sexual harassment complaints constitutes a materially adverse employment action. They contend they have direct evidence of retaliatory intent based on CRST’s admission that its policy is to

B. Motion for Decertification of Hostile Work Environment Class 1. Parties’ Arguments CRST argues that the hostile work environment class must be decertified for the following reasons:

a. Plaintiffs cannot meet the commonality and predominance requirements

b. The lack of classwide proof renders certification unmanageable

c. Issue certification under Rule 23(c)(4)(A) is improper

d. The hostile work environment class as certified is not ascertainable

See Doc. No. 172-1. CRST contends the class must be decertified pursuant to the commonality and predominance requirements because liability for this claim requires too much of an individualized analysis. See Doc. No. 172-1 at 7. It further argues that plaintiffs’ approach to proving the claim based on a compilation of recorded complaints by divining a pattern or practice out of the underlying circumstances, without the aid of an expert, is not “common evidence” that is typically necessary for classwide proof. Id.

at 8. It emphasizes that plaintiffs must provide “significant proof” of a “general policy” to proceed as a class and plaintiffs cannot meet that burden with anecdotal evidence from only two percent of class members. Id. CRST further contends that plaintiffs’ approach makes certification unmanageable because the first phase of trial to resolve liability will result in hundreds of mini-trials, eliminating any efficiency of the certification. Id.

Finally, it argues that the current class definition creates an improper, “win-win” situation for the plaintiffs, as they will either prevail as to liability at the first phase or, by virtue of losing, would not be considered members of the class such that this litigation would have no preclusive effect on them. Id. at 9.

Plaintiffs argue that CRST has not made any new arguments with regard to certification and that for the reasons stated in my original order (Doc. No. 85), certification of the hostile work environment class remains appropriate. See Doc. No. 192-1 at 44-45. They argue they intend to rely on the evidence that supported their

original motion for class certification as well as new evidence consisting of Rule 30(b)(6) testimony, testimonial evidence from CRST managers and documentary evidence (such as sexual harassment complaint investigation files) produced by CRST. Id. at 49-50. Plaintiffs argue they are allowed to prove their case using anecdotal evidence from CRST’s own personnel files to prove the existence of a policy, pattern or practice rather than statistical evidence. Id. at 57-60. Plaintiffs argue the class is manageable, relying on the arguments in their initial motion for class certification and the reasons stated in my order granting certification. Id. at 65-66. Finally, they argue the class is ascertainable, but suggest that the class definition could be revised to those who “have made a documented complaint” to satisfy any of CRST’s concerns. Id. at 67-68.

In reply, CRST argues that plaintiffs’ proposed approach of proving their case with inadmissible and unreliable “summary exhibits” prepared by their trial counsel, rather than relying on testimony from female drivers, does not establish the requirements of commonality and predominance. See Doc. No. 197 at 5. It contends that at trial, it would be entitled to present evidence concerning the full story with respect to each and every recorded entry in the summary exhibits, which demonstrates why plaintiffs’ proposed approach is unworkable. Id. at 5-6. It argues that proof through anecdotal evidence alone (without statistical analysis or the aid of an expert) is appropriate only in a limited number of circumstances (such as when the number of employees is small) and that the use of such evidence in this case is particularly problematic given the unique nature of CRST’s workplace. Id. at 7. CRST summarizes its argument as follows:

Plaintiffs have no evidence, and certainly not the common evidence required by Dukes, to prove their class-wide liability theory that highly confidential [HR] decisions about investigating and resolving individual complaints could somehow incite severe, pervasive, sex-based harassment by male drivers, each working on a different truck. They lack support for their assumption that any particular disciplinary failure overrode CRST’s explicit anti-harassment policy, became known outside the strict confidentiality of [HR], was part of a routine everyday company policy of tolerating sexual harassment, and engendered a hostile work environment so severe as to

alter the terms of employment of any other female driver – let alone of hundreds of other female drivers. They simply presume that every single allegation of sexual harassment was true, rose to a level cognizable under Title VII, and justified termination of the accused driver. Id. at 7-8 (emphasis in original).

2. Factual Background I previously certified the following Hostile Work Environment Class: All women who were or are employed as team truck drivers by CRST Expedited, Inc. at any time from October 12, 2013 to the present, who have been subjected to a hostile work environment based on sex as a result of any of the following alleged CRST policies:

(1) failing to find their complaints were corroborated without an eyewitness or admission, (2) failing to discipline drivers after complaints were corroborated; and (3) failure to discipline DMs for failing to promptly respond to sexual harassment complaints. Doc. No. 85-54-55. I also certified the issue of whether CRST has any of the following policies, patterns or practices that create or contribute to a hostile work environment:

(1) failing to find their complaints were corroborated without an eyewitness or admission (2) failing to discipline drivers after complaints were corroborated and (3) failure to discipline DMs for failing to promptly respond to sexual harassment complaints. Id. Each party has submitted a factual background, some of which overlaps with the factual background discussed in the certification order. See Doc. No. 85 at 3-18. As such, I will incorporate that background to the extent it is relevant to the hostile work environment class and will discuss the parties’ additional representations based on

discovery below. CRST states that upon receiving a complaint of sexual harassment from one of its drivers, its first priority is the safety of the complaining driver. Doc. No. 172-1 at 13. Upon receiving the complaint, an HR employee logs it into its “Positive Work Environment Employee Relations” spreadsheet and immediately commences an investigation, which includes gathering pertinent records, developing a line of questioning and speaking with the accused. Id. It states that each investigation depends on the circumstances of the complaint and the available sources of proof. After speaking with the accused regarding the nature and circumstances of her complaint, the HR employee then looks at whether there are any prior complaints against the accused driver and considers any relevant documents or communications, interviews any available witness and interviews the accused. Id. The HR employee then determines whether the complaint can be corroborated. CRST states that corroboration can come from a variety of sources and that the test if whether HR is “able to identify that the action was confirmed and that it took place.” Id. at 13-14. It further states it does not have a policy or practice of requiring an eyewitness statement or admission to corroborate a complaint.

Even if the HR employee cannot corroborate the complaint, CRST states it nonetheless takes remedial measures. It changes the accused male driver’s status to “male only” and assures the driver will never again be assigned to drive with the complainant. Id. at 14. These designations last indefinitely and can be removed only by HR. The accused driver also receives a copy of CRST’s written policy prohibiting harassment via certified mail. Id. If the complaint is corroborated, the accused driver faces disciplinary action up to and including termination. HR itself does not impose the discipline but recommends a course of action to the driver’s DM. Discipline depends on individual circumstances, including the nature and severity of the corroborated harassment. It could include verbal warnings, written warnings, counseling sessions with HR, Operations, Safety, or other personnel, removal of lead driver certification or termination. Id. at 15.

Plaintiffs suggest that authority over drivers is highly centralized. See Doc. No. 192-1 at 5. The drivers’ work is directed by DMs. There are 60 DMs in total and they all work in the same work area. Approximately 10 operations managers supervise the DMs. The operations managers report to two directors who report to CRST President, Cameron Holzer. Id. at 6.

Carlson has authority over the investigation of all harassment or discrimination complaints. Id. From June 2013 to approximately April 2014, she was solely responsible for investigating each of those complaints. Id. By late 2015, Carlson supervised two other employee relations representatives who assisted in investigating employee complaints. Id. at 6-7.

Plaintiffs reference their motion for class certification regarding the sexual harassment female drivers experience. That summary is as follows: Women who worked as team truck drivers for CRST were subjected to verbal sexual harassment; offensive sexual conduct; and unwanted physical contact including attempted sexual assault. This conduct frequently occurred on the team trucks while the drivers were in route. Examples of the verbal harassment female drivers experienced include requests or demands for sex (Ex. 5 ¶16, 18, 27, 36; Ex. 8 ¶11; Ex. 9 ¶7, 9; Ex. 7 ¶9, 16, 24, 26, 36, 53); comments about their bodies, come-ons, and other forms of verbal harassment (Ex. 4 ¶9-10, 13-15, 22, 27, 32, 56; Ex. 8 ¶38; Ex. 9 ¶7; Ex. 7 ¶9, 12, 17, 32, 34, 44, 50, 52; Ex. 5 ¶14, 26, 34-35).

Examples of offensive conduct they experienced include requests or attempts to get into bed with them (Ex. 4 ¶29; Ex. 6 ¶12; Ex. 7 ¶13-14, 53, 60), being stared at while they slept (Ex. 6 ¶11; Ex. 7 ¶60), and men ¶15). Examples of the unwanted physical contact include attempted sexual assault (Ex. 4 ¶44; Ex. 5 ¶28-29), and physical touching, including kissing or touching with genitals (Ex. 4 ¶12, 28, 29; Ex. 6 ¶8; Ex. 8 ¶8, 29-30; Ex. 9 ¶13; Ex. 7 ¶59). When women resisted the harassment or rejected sexual advances, the men harassing them retaliated against them. Examples of such retaliation included men kicking them off the truck and abandoning them (Ex. 6 ¶17; Ex. 7 ¶27), claiming they left the truck with no authorization (Ex. 4 ¶34), taking measures to stop them from communicating with dispatch (Ex. 8 ¶13; Ex. 7 ¶19-21), spreading rumors

¶12; Ex. 7 ¶18, 31, 55), making false reports about the woman to dispatch (Ex. 6 ¶18; Ex. 8 ¶35; Ex. 7 ¶45), calling the police on them (Ex. 8 ¶31), destroying their belongings (Ex. 6 ¶19), holding them captive (Ex. 5 ¶41- 46), and/or physically assaulting them (Ex. 6 ¶21; Ex. 8 ¶19). Doc. No. 35-1 at 13-14. Plaintiffs contend that although HR considers whether there are prior complaints against the accused driver as part of its investigation into a sexual harassment complaint, Carlson stated in her capacity as a Rule 30(b)(6) witness that the existence of prior complaints will not impact CRST’s determination as to whether the instant complaint is deemed corroborated. Doc. No. 192-1 at 14. The relevant facts for each of the three alleged policies will be discussed below.

a. Failure to Corroborate Complaints Without an Eyewitness or

Admission Plaintiffs rely on the following testimony from Carlson regarding the existence of CRST’s alleged failure to corroborate a complaint in the absence of an eyewitness or admission: Q: If the allegations of harassment concerned behavior that occurred on the truck while the drivers are there together, would it ever be possible for you to find that harassment was corroborated based on evidence other than a third person eyewitness who was on the truck

seeing harassment?

A: Not unless there was an admission by the accused individual. Id. at 15. Plaintiffs contend that CRST’s business records confirm this policy, which plaintiffs have compiled in summary fashion pursuant to Federal Rule of Evidence 1006. See Plaintiffs’ Figure 1 and 2. They state that the records reveal that either an eyewitness at 16. Plaintiffs rely on the anecdotal examples from their motion for class certification demonstrating that CRST disregarded evidence that could have corroborated sexual

harassment. Id. Now that they have compiled a list of all documented complaints of sexual harassment made by female drivers against male drivers during the class period that CRST deemed not to have been corroborated, plaintiffs contend the basis for their pattern or practice claim is even stronger. They state that CRST found 209 sexual harassment complaints made by female drivers not to be corroborated during the class period. Id.

They note that in 60 percent of those cases (124 out of 209), CRST’s investigation records show that it disregarded evidence that could have potentially corroborated the victim’s complaint, but did not consider that evidence to be eyewitness testimony or an admission of sexually harassing conduct. Id. at 17. In 36 cases, a witness was identified who could have provided evidence supporting that victim’s complaint (such as witnesses who heard harassment over the phone or saw the harasser’s conduct before or after the time the drivers were on the truck). Id. In 19 cases, evidence existed that could have supported the victim’s complaint (including text messages, pictures, a police report, or some other document that CRST either did not obtain or refused to credit). Id. In 52 cases, the alleged harasser made admissions that could have supported the victim’s complaint, but that CRST did not deem an admission of sexual misconduct. Id. Finally, in 17 cases more than one of these additional forms of evidence was available. Id. Plaintiffs conclude that in nearly 60 percent of “uncorroborated” cases, CRST either refused to obtain or credit evidence that could have distinguished the case from a true “he said/she said” situation. Id.

Plaintiffs assert that when confronted with examples of CRST refusing to find a complaint had been corroborated in light of this evidence, Carlson said she could not answer. Id. at 18. For instance, when Leslie Fortune complained about her lead driver, Carlson confirmed that this lead driver lied to HR when he stated he had not required Fortune to share a hotel room with only one bed. Id. Carlson deemed Fortune’s complaint uncorroborated. When asked why the lead driver was terminated only for

texting while driving when she was able to confirm that he had required a student to stay in a hotel room with only one bed in it and lied to HR about it, Carlson replied, “I can’t answer that.” Id. Fortune also complained that a co-driver called her a “lot lizard” (truck driver slang for prostitute) to another driver. Id. The investigation form shows that Carlson left a message for the driver to whom the statement was made but never followed up, even though she conceded that drivers are required to cooperate with HR investigations.

Id. She also did not make any further efforts to reach out to three other witnesses Fortune had identified beyond leaving them a single telephone message. Id. Plaintiffs identify one other specific example involving Fortune and an additional example involving Claudia Lopez. Id. at 19-20. In both instances, Carlson deemed the complaint uncorroborated, even though there was evidence that could have suggested it was true, such as statements by the accused or witnesses who were never contacted. Id.

Plaintiffs discuss two additional examples of uncorroborated complaints with supporting evidence that were handled by the two employee relations representatives. Id. at 21. Plaintiffs state that these examples and others in the investigation forms demonstrate the alleged policy, pattern or practice of failing to find a complaint is corroborated in the absence of eyewitness testimony or an admission by the accused. Id. at 22.

b. Failure to Discipline When Complaints are Corroborated

Plaintiffs argue CRST has a policy, pattern or practice of failing to discipline drivers when complaints are corroborated. While CRST states that HR merely makes a recommendation to DMs and operations managers regarding any discipline following a harassment complaint, plaintiffs provide deposition testimony from a DM and operations manager stating that he had no personal involvement in disciplining drivers outside of what HR instructed him to do. Id. Another DM during the class period also stated that “I just, in the end, was either told ‘male only,’ ‘female-only,’ ‘terminated.’” Id.

Plaintiffs state that these designations of “male only” are not disciplinary, as they do not reduce a driver’s pay and are not considered a disciplinary warning. Plaintiffs state that these same designations were used in many cases even when CRST found a sexual harassment complaint to be uncorroborated. Id. at 22-23. They also note that even CRST does not claim that its practice of sending the accused driver a copy of CRST’s sexual harassment policy is a disciplinary action. Id. at 23.

In addition to the anecdotal examples provided in their motion for class certification, plaintiffs argue that based on CRST’s own records, CRST imposed no discipline in over 60 percent of cases (34 out of 56) where CRST deemed some sexually instances where HR corroborated some sexually harassing conduct, but none of the harassing drivers were disciplined in any way, warned, or directed to sit through a PWE training. Id. at 23-27.

c. Failing to Discipline DMs Who Do Not Promptly Respond

Appropriately to Complaints Plaintiffs note that Stastny stated in her deposition that DMs who receive sexual harassment complaints and do not immediately convey those complaints to HR should be disciplined if they permit the truck to continue driving after learning of the sexual harassment complaint.

Q: If a driver manager doesn’t immediately convey a sexual harassment complaint that they have learned of to HR, they should receive some

form of discipline, right?

A: Correct. Q: And same with a situation where the driver manager has permitted the truck to continue onward past the point where they learned about

a sexual harassment complaint situation on the truck, right?

Doc. No. 192-1 at 27. An operations manager also admitted that DMs are required to notify HR of a sexual harassment complaint “[a]s soon as they conclude the conversation” in which they become aware of the complaint. Id. at 28. Carlson also testified as CRST’s Rule 30(b)(6) witness that a DM who receives a sexual harassment complaint is required to split the drivers. Id. Plaintiffs note that HR does not regularly review how DMs respond to sexual harassment. Id. Stastny could not recall a single instance in which a DM was terminated for failing to comply with CRST’s policy of reporting sexual harassment complaints to HR or disciplined for failing to appropriately handle a sexual harassment complaint. Id.

HR decides whether to discipline a DM for mishandling a sexual harassment complaint. When discipline is imposed upon a DM who has failed to appropriately handle a sexual harassment complaint, a disciplinary action form is filled out and stored in the employee’s file and within the HR employee relations files. Id. at 29. In discovery, plaintiffs requested all disciplinary action forms relating to any DM’s failure to timely or properly respond to a complaint of sexual discrimination or sexual harassment. Id. Only three forms were produced for the class period. Id. None of those disciplinary actions related to the anecdotes plaintiffs referenced in their motion for class certification. Id.

Plaintiffs then summarize 29 examples in which a complaint was allegedly mishandled and the DM did not receive any discipline, beyond a written warning in one instance and a three-day suspension in another. Id. at 29-31. Plaintiffs note that those examples are not an exclusive list of all failures by a DM to appropriately handle a sexual harassment complaint. Because there are only three documented occasions of a DM being disciplined, plaintiffs contend the extent of this failure can only grow as they uncover more examples. Id. at 32.

Plaintiffs further argue that failing to discipline DMs exacerbates the problem because the DMs can continue mishandling complaints without consequence. Id. They

cite an example of a DM who failed to immediately separate the drivers upon receiving a complaint but was not disciplined – even though HR had knowledge of how the DM handled the incident. Id. at 32-33. They cite another instance of the same DM taking no action regarding a complaint. Id. at 33. HR spoke with the DM and the DM admitted telling the complainant to “put her big girl panties on.” Id. HR told the DM the comment was unprofessional and should not be used going forward. The DM was not disciplined for the comment, or failing to separate the drivers and escalate the complaint to HR. Id.

The same DM then handled a complaint from a student driver against a lead driver. Id. The DM forwarded an email chain between the two drivers to HR, which revealed that the DM failed to promptly separate the drivers and ultimately had them deliver the load before separating them. The DM also made the following comment to the complainant:

That is strange because I have never had any one ever complain about that about him . . and he trains most women because we don’t’ [sic] have very many that will train women, . [sic] Unfortunately I will need to address this immediately in the morning with HR . .and it is too bad because he is a good trainer w/ good knowledge. I will figure out where to get you to . .

are you okay for the night?

Id. at 34. The DM was not disciplined for how this complaint was handled. Id. at 35. On a fourth occasion, this same DM handled another complaint by telling the complainant to deliver the load and then the drivers could separate at a CRST terminal. Id. When interviewed by HR, the complaining driver explained the DM’s response.

When HR spoke to the DM, the DM made admissions revealing the complaint had been mishandled and HR told the DM that when a driver mentions harassment, the DM should remove her right away. The DM, again, was not disciplined. Id. at 36. Plaintiffs cite examples with another DM in which a driver complained that her lead driver slept in the truck nude and refused to stop when she told him it bothered her.

Id. at 37. She told HR that her DM asked if she could deal with it one more day. This

DM was not disciplined for failing to immediately separate the drivers. On another occasion, a driver similarly reported to HR that upon complaining of her co-driver’s inappropriate behavior, the DM tried to require her to keep driving to move the load. The DM was not disciplined and was subsequently promoted to operations manager, a position supervising other DMs. Id.

Plaintiffs allege that under this operations manager’s supervision, other DMs engaged in similar behavior. They cite an example of a female driver who reportedly got off the truck after her co-driver approached her in his boxers, sat on her bed while she was lying down, watched videos of half-naked women in the cab of the truck and slapped her on the back several times while she was driving. Id. The driver reported that her DM hung up on her and did nothing to assist her with getting a hotel or transportation. The DM admitted that he probably should have sent an email to HR conveying the sexual harassment complaint, but neither the DM nor the operations manager were disciplined. Id. at 38.

In sum, plaintiffs contend that CRST repeatedly failed to discipline DMs for failure to follow its policy of immediately separating drivers upon receipt of a sexual harassment complaint and escalate that complaint to HR. They suggest that DMs are incentivized to keep the trucks moving because stopping them due to sexual harassment complaints will affect their compensation metrics. Plaintiffs allege sexual harassment is allowed to thrive under this purported policy, pattern or practice of failing to discipline DMs for mishandling complaints.

3. Applicable Law Federal Rule of Civil Procedure 23 governs class certification. Under Rule 23(a), the party seeking certification must demonstrate: (1) the class is so numerous that joinder of all members is impracticable (2) there are questions of law or fact common to the class

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. The proposed class must also satisfy at least one of the three requirements under Rule 23(b). I found that the hostile work environment class was properly certified under Rule 23(b)(3), which requires that “the questions of law or fact common to class members predominate over any question affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Because commonality and predominance are the two primary bases upon which CRST argues class certification is inappropriate, I will focus on those aspects of Rule 23(a) and Rule 23(b)(3).

“Commonality requires a showing that class members ‘have suffered the same injury.’” Powers v. Credit Mgmt. Servs., 776 F.3d 567, 571 (8th Cir. 2015) (quoting Falcon, 457 U.S. at 157). This requirement is satisfied when the legal question “linking the class members is substantially related to the resolution of the litigation.” DeBoer v.

Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995) (quoting Paxton, 688 F.2d at 561). “Their claims must depend upon a common contention – for example, the assertion of discriminatory bias on the part of the same supervisor.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). “That common contention, moreover, must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. The commonality requirement cannot be satisfied by demonstrating that class members have all suffered a violation of the same provision of law.” Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th Cir. 2011). “Plaintiffs cannot ‘simply leap from the premise that they were the victims of discrimination to the position that others must also have been.’” Gonzalez v. Brady, 136 F.R.D. 329, 331 (D.D.C.

1991) (quoting Morrison v. Booth, 763 F.2d 1366, 1371 (11th Cir. 1985)).

Rule 23(b)(3) requires a finding “that the questions of law or fact common to class members predominate over any questions affecting only individual members and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Powers, 776 F.3d at 569. Rule 23(b)(3) is composed of two requirements: predominance and superiority. Common questions must “predominate over any questions affecting only individual members” and class resolution must be “superior to other available methods for the fair and efficient adjudication of the controversy.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997). The rule lists the following factors are pertinent to these findings:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3). “The predominance inquiry ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’” Elkins v. American Showa Inc., 219 F.R.D. 414, 419 (S.D. Ohio 2002) (quoting Bacon v. Honda of America Mfg., Inc., 205 F.R.D. 466, 486 (S.D. Ohio 2001)). It is not satisfied if “individual questions . . .

overwhelm the questions common to the class.” Ebert v. General Mills, Inc., 823 F.3d 472, 478-79 (8th Cir. 2016) (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1196 (2013)). “An individual question is one where ‘members of a proposed class will need to present evidence that varies from member to member,’ while a common question is one where ‘the same evidence will suffice for each member to make a prima facie showing [or] the issue is susceptible to generalized, class-wide proof.” Ebert, 823 F.3d at 479 (quoting Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016)). With regard to predominance, the Eighth Circuit has stated:

When determining whether common questions predominate, a court must conduct a limited preliminary inquiry, looking behind the pleadings, but that inquiry should be limited to determining whether, if the plaintiffs’ general allegations are true, common evidence could suffice to make out a prima facie case for the class. While limited in scope, this analysis should also be rigorous.

In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d at 618 (internal citations and quotation marks omitted). “In conducting this preliminary inquiry, however, the court must look only so far as to determine whether, given the factual setting of the case, if the plaintiffs[’] general allegations are true, common evidence could suffice to make out a prima facie case for the class.” Blades, 400 F.3d at 566. The predominance requirement is “far more demanding” that Rule 23(a)’s commonality requirement. Amchem, 521 U.S.

at 623-24. “In contrast to Rule 23(a)(2), the issue of predominance under Rule 23(b)(3) is qualitative rather than quantitative.” Ebert, 823 F.3d at 478. A class action also requires plaintiffs to prove by a preponderance of the evidence that the defendant engaged in a “pattern or practice of unlawful discrimination in various company policies.” Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 860 (D. Minn.

1993) (citing Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 470 (8th Cir. 1984)). To establish a pattern or practice the discriminatory acts must not be “isolated, insignificant or sporadic” but must be “repeated, routine, or of a generalized nature.” Jenson, 824 F. Supp. at 860 (citing Catlett v. Missouri Highway and Transp. Comm’n, 828 F.2d 1260, 1265 (8th Cir. 1987)). The discrimination should be “the company’s standard operating procedure – the regular rather than the unusual practice.” Jenson II, 824 F. Supp. at 860 (citing Teamsters, 431 U.S. at 360-62). For instance, the pattern or practice theory could be that the employer “created and maintained a sexually hostile and abusive work environment . . . because it tolerated . . . individual acts of harassment by its employees by refusing to take notice of, investigate, and/or discipline the workers who sexually harassed employees.” E.E.O.C. v. Mitsubishi Motor Mfg. of America,

Inc., 990 F. Supp. 1059, 1069 (C.D. Ill. 1998). Sexual harassment that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” constitutes unlawful sex-based discrimination under Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986). To prove a claim of hostile work environment, plaintiffs must prove (1) that they are members of a protected group, (2) that they were subjected to unwelcome sexual harassment, (3) that the harassment was based on sex, (4) that the harassment affected a term, condition or privilege of her employment and (5) their employer knew or should have known of the harassment and failed to take appropriate remedial action. Nichols v. Tri-National Logistics, Inc., 809 F.3d 981, 985 (8th Cir.

2016). “Actionable harassment must have been both objectively and subjectively offensive affecting a term of employment.” Id. (citing Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 759 (8th Cir. 2004)). 4. Analysis As noted in my previous order, plaintiffs advocated for a Teamsters approach to their putative class action, which would bifurcate the case into two phases: liability and damages. See Teamsters, 431 U.S. at 360-62; Jenson, 824 F. Supp. at 875-76 (applying modified Teamsters framework to pattern or practice hostile work environment claim). I found that Phase I would determine whether CRST created or tolerated a hostile work environment by way of the three stated policies. If liability is established, each case would then proceed to Phase II to determine damages. As discussed below, this method is not as simple as it might seem in the context of a hostile work environment pattern or practice claim in which plaintiffs seek monetary and injunctive relief.

In my order certifying the classes, I noted that some courts applying the Teamsters approach for a pattern or practice hostile work environment claim find that only the objective component needs to be established during Phase I. See Mitsubishi Motor Mfg.,

The plaintiff in a: its initial burden is to demonstrate that unlawful discrimination has been a.

The plaintiff in a: regular procedure or. policy. followed by an employer or group of.

The plaintiff in a: employers. At the initial, “liability” stage of a. pattern. -or-. practice. suit the.

The plaintiff in a: Government is not required to offer evidence that each person for whom it.

The plaintiff in a: will ultimately seek relief was a victim of the employer's discriminatory.

The plaintiff in a: policy. . Its burden is to establish a prima facie case that such a. policy.

The plaintiff in a: existed. The burden then shifts to the employer to defeat the prima facie.

990 F. Supp. at 1078 (“All that the EEOC will have established in Phase I by a finding of pattern or practice is that an objectively reasonable person would find that, as a whole, the environment within the company is hostile and that the company was on notice of and was negligent regarding the systemic problem.”).17 In Phase II, the individual plaintiffs must then prove the subjective component to demonstrate they are part of the affected class. See Bremiller v. Cleveland Psychiatric Inst., 195 F.R.D. 1, 25, 26 (2000) (describing the two-phase approach for class action claims alleging pattern or practice of hostile work environment as a result of sexual harassment). Phase II would also involve individual determinations of damages. See Bremiller, 195 F.R.D. at 31 (“Whether individual class members are entitled to damages that resulted from the alleged policy of harassment is relevant only during the recovery phase of the proceedings and will be determined therein should a jury find Defendants liable for tolerating a policy of sexual harassment.”). Upon closer examination, and based on the additional record now before me, I find that Phase I may involve additional considerations beyond whether CRST created or contributed to a hostile work environment through the three alleged policies, patterns or practices.

The Teamsters Court defined the first stage as follows: The plaintiff in a pattern-or-practice action is the Government, and regular procedure or policy followed by an employer or group of employers. At the initial, “liability” stage of a pattern-or-practice suit the policy. Its burden is to establish a prima facie case that such a policy 17 Pattern or practice claims may be brought by the Equal Employment Opportunity Commission (EEOC) or by a class pursuant to Rule 23(a). The same liability standards apply. See E.E.O.C.

v. Dial Corp., 156 F. Supp.2d 926 (N.D. Ill. 2001) (referencing both EEOC and class actions

in discussing liability).

showing of a: proof is either inaccurate or insignificant.....

showing of a: If an employer fails to rebut the inference that arises from the.

showing of a: Government's prima facie case, a trial court may then conclude that a.

showing of a: violation has occurred and determine the appropriate remedy. Without any.

showing of a: further evidence from the Government, a court's finding of a. pattern. or.

showing of a: practice. justifies an award of prospective relief. Such relief might take the.

showing of a: form of an injunctive order against continuation of the discriminatory.

showing of a: practice. , an order that the employer keep records of its future employment.

showing of a: decisions and file periodic reports with the court, or any other order.

showing of a: “necessary to ensure the full enjoyment of the rights” protected by Title.

showing of a: VII..

showing of a pattern or practice by demonstrating that the Government's practice justifies an award of prospective relief. Such relief might take the practice, an order that the employer keep records of its future employment Teamsters, 431 U.S. at 360–61 (citation omitted). In discussing the employer’s defense, the Court noted:

The employer's defense must, of course, be designed to meet the prima facie case of the Government. We do not mean to suggest that there are any particular limits on the type of evidence an employer may use. The point is that at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking. While a pattern might be demonstrated by examining the discrete decisions of which it is composed, the Government's suits have more commonly involved proof of the expected result of a regularly followed discriminatory policy. In such cases the employer's burden is to provide a nondiscriminatory explanation for the apparently discriminatory result.

Id. at 360-61, n. 46. While that approach worked in Teamsters (a race discrimination case), it does not fit neatly into the pattern or practice claim of hostile work environment. As one court has explained: [I]n a race discrimination case[,] it is clear why a pattern or practice should have an effect on an employer’s liability to individual claimants. If an employer has an established policy of making employment decisions with racial animus in violation of Title VII, it is likely that any specific employment decision also violates Title VII, and if a particular decision was not discriminatory, the employer is in the best position to show why.

However, the impact of a pattern or practice finding in a hostile work

environment sexual harassment case is not so clear. In contrast with a race discrimination case – where the focus is on the employer’s basis for making an employment decision that adversely affected the claimant – a sexual harassment case centers on the gravity of the conduct to which a claimant was exposed. The sexual harassment suffered by the claimant must have been severe or pervasive enough (measured both objectively and subjectively) to constructively alter the terms or conditions of the claimant’s employment by creating a hostile work environment. Otherwise, no Title VII violation has occurred. Therefore, a finding that an employer had a pattern or practice of tolerating sexual harassment in violation of Title VII does not necessarily establish that an individual claimant was exposed to harassment or that the harassment an individual claimant suffered violates Title VII. It is thus unclear what effect a pattern or practice finding should have on an individual claimant’s suit for damages.

E.E.O.C. v. Int’l Profit Assocs., No. 01 C 4427, 2007 WL 3120069, at *3 (N.D. Ill. Oct. 23, 2007). Thus, a hostile work environment claim presents two primary questions for the trier of fact: (1) was the complainant, “because of her sex, subjected to such hostile, intimidating, or degrading behavior, verbal or nonverbal, as to affect adversely the conditions under which she worked” and (2) was “the defendant’s response or lack thereof to its employees’ behavior . . . negligent.” Mitsubishi Motor Mfg., 990 F. Supp.

at 1071 (quoting Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1009 (7th Cir. 1994)). CRST argues plaintiffs have only addressed the second question and their evidence as to the first question is insufficient to sustain a class. Plaintiffs have done little to explain precisely how their hostile work environment claim should be tried and where the certified issue fits into the overall method of proving liability and damages. Aside from advocating for a bifurcated approach (which I accepted in my order certifying the classes), plaintiffs have not explained how they intend to prove their hostile work environment claim on a class basis. Indeed, in resisting CRST’s motion for decertification, plaintiffs have offered no further detail regarding how they expect to prove each element of a pattern or practice hostile work environment claim prior to

reaching the issue of whether CRST tolerates a hostile work environment through the three alleged policies. Examining how such a case could be tried has guided my analysis as to whether any part of plaintiffs’ hostile work environment claim should be certified as a class under Rule 23(a) and 23(b)(3).

Int’l Profit Assocs. contains a helpful analysis of how a policy, pattern or practice claim of hostile work environment would play out at trial. In that case, the court carefully considered the bifurcated approach of Teamsters and how it had been used in other cases. It rejected the EEOC’s argument that the objective element of the hostile work environment claim could be determined at the pattern or practice phase. The EEOC had essentially argued that it intended to prove the objective component by showing that sexual harassment that occurred company-wide was sufficiently severe or pervasive such that a reasonable person would find the work environment as a whole to be hostile. The court rejected this approach with the following reasoning:

The EEOC’s belief that it can meet its burden of proof on the objective element by aggregating the acts of harassment to which all the claimants were subjected to derives primarily from Mitsubishi, which eliminated the objective component of the severe or pervasive test at the individual stage. As discussed above, the court’s rationale for doing so was that “[a]lthough ‘isolated’ or ‘sporadic’ instances of harassment . . . are typically not enough to establish hostile environment sexual harassment, single instances of conduct must be taken together with the continuous pattern of harassment in the workplace, which was established at the pattern or practice phase.” Mitsibishi [sic], 990 F. Supp. at 1081. The court therefore permitted the individual claimants to rely on the objective showing made as to the entire workplace at the pattern or practice phase rather than requiring them to make individual showings that the specific harassment they suffered was objectively severe. Id. at 1079-81.

The court declines to follow Mitsubishi’s approach (and, concurrently, that adopted in Dial and Jenson) because the court does not see how Mitsubishi can be reconciled with the Supreme Court’s hostile work environment jurisprudence. In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986), the case in which the Supreme Court first articulated what has been the governing hostile work environment test for more than twenty

years, the Court stated that “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the terms or conditions of [the victim’s] employment and create an abusive working environment.” Id. at 67 (alteration in original) (citation and internal quotation marks omitted). If the conduct at issue does not reach the Meritor threshold, no U.S. 742, 752 (1998) (citing Meritor, 477 U.S. at 65).

The Court elaborated on the Meritor test in Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1992), holding that sexual harassment is actionable only where the conduct at issue is “severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive.” Id. The Court also held that the plaintiff must subjectively perceive the environment to be hostile, for otherwise the conditions of the plaintiff’s employment have not actually been altered, regardless of whether a reasonable person would believe them to be. Harris, 510 U.S. at 21-22. Thus, the state of the law following Harris can be summarized as follows: “[I]n order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that victim in fact did perceive to be so.” Faragher v.

City of Boca Raton, 524 U.S. 775, 788 (1998). . . . . The Court’s hostile work environment cases demonstrate that it intended to construct a test that would prevent eggshell plaintiffs – those who are offended by comments or actions that would not offend a reasonable person – from recovering under Title VII. The objective inquiry functions as a limitation on suits attacking the ‘genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.’” Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). But the EEOC’s proposed method of proof – and, in the court’s opinion, that endorsed by Mitsubishi, et al. – would strip the limitation of its significance in a pattern or practice case. Under the EEOC’s theory, if IPA is found to have a policy of tolerating severe or pervasive sexual harassment, then every woman who was exposed to any form of sexual harassment at IPA, however trivial, would be entitled to damages so long as she was subjectively offended by the conduct she was exposed to. In other words, a woman who experienced only an untoward glance or an isolated remark could nonetheless recover compensatory and punitive damages so long as she was subjectively

offended. This scenario is inconsistent with the principles announced in Meritor and Harris, and the court does not believe that the Supreme Court would sanction such a result, even in the context of a pattern or practice case. This is not to say, however, that the terms or conditions of employment are not altered when an employer has a policy of allowing severe or pervasive harassment to occur in its workplace. A policy of tolerating such behavior is itself a Title VII violation, but proof of such a policy establishes only that the employer behaved improperly with respect to a protected group in general, and therefore justifies only injunctive relief under Teamsters. That an employer has such a general policy does not mean that every employee who was harassed has been exposed to harassment meeting the Meritor threshold, and thus does not mean that the terms and conditions of employment have been altered for each employee who experienced harassment. It is entirely possible for an employee to work at a business with a policy of tolerating actionable sexual harassment, yet be exposed to harassment in only the most superficial of ways.

Of course, the extent to which a particular employee was exposed to the conduct relied on by the EEOC to prove the company’s hostile work environment (at the pattern or practice phase) is relevant to that employee’s individual hostile environment claim. But this is only to say, as Harris instructed, that the totality of each employee’s circumstances, not isolated instances, determine whether sexual harassment is actionable. The court therefore agrees with Mitsubishi that the work environment as a whole may be relevant to an individual claimant’s experience, see 990 F. Supp. at 1081, but disagrees that an individual claimant can satisfy her burden on the objective element by aggregating all claimants’ experiences. Instead, the court will focus on the conduct to which each individual claimant was exposed. This approach is more consistent with the Court’s admonition in Meritor and Harris that a Title VII violation occurs only when the harassment to which a particular claimant is exposed is so severe or pervasive that a reasonable person would be offended.

The court therefore agrees with IPA that the claimants cannot be relieved of their burden to make an objective showing at the individual phase of this lawsuit if the EEOC prevails on the pattern or practice aspect of this case in Phase I. An objective showing will be required at both Phase I and Phase II. At Phase I, the EEOC will be required to prove that a

reasonable person would find the sexual harassment occurring globally at IPA so severe or pervasive that the work environment as a whole was hostile or abusive toward women. At Phase II, the EEOC must also show that the harassment to which each individual claimant was exposed is severe or pervasive enough to be actionable.

Int’l Profit Assocs., Inc., 2007 WL 3120069, at *12-14. I agree with this approach as it applies to this case, particularly given the manner in which the sexual harassment is alleged to have occurred here – in trucks and by one individual against another. It would be unfair to conclude that a work environment as a whole is hostile by tallying up all instances of sexual misconduct when each person in the class may have been subject to only one of those instances and unaware of the others.

For that reason, Phase II must involve the question of whether the conduct particular to each individual is objectively and subjectively offensive. The district court in Int’l Profit Assocs. explained this as follows: As discussed above, proof that the employer had a policy of tolerating unlawful sexual harassment does not necessarily make it more likely that any particular claimant was subject to actionable sexual harassment.

Rather, a particular claimant could have experienced only mundane comments, even though the employer had a practice of tolerating far more objectionable actions. Thus, to remain consistent with the goals of Title VII, as articulated by the Supreme Court, each claimant must demonstrate that the harassment she experienced meets the objective threshold of Meritor and Harris. Nor would the employer be in a better position than the employee to demonstrate that the harassment experienced by a given plaintiff was not sufficiently severe or pervasive. To the contrary, each individual claimant should have knowledge of the specific harassment she experienced, and the relevant inquiry is whether this conduct, taken as a whole, would render the work environment hostile to a reasonable person.

Thus, shifting the burden on the objective element to the employer at the individual phase does not make sense under Teamsters. Id. at *15. I agree with the general framework discussed by the District of Northern Illinois regarding how a pattern or practice claim of hostile work environment should proceed. See id. at *17 (summarizing the legal framework for trial). Because plaintiffs

are seeking more than injunctive relief, and this is a class action – rather than an action brought by the EEOC – I must consider whether this approach is compatible with the requirements of Rule 23(a) and Rule 23(b)(3). CRST argues that plaintiffs are unable to meet the commonality requirement under Rule 23(a) and the predominance and superiority requirements under Rule 23(b)(3).

When applying the above framework in the context of a class action, it becomes obvious that individual issues will predominate common ones under Rule 23(b)(3). Even at Phase I, proof of the alleged sexual harassment will consist of individual and separate instances of conduct rather than conduct to which multiple women were exposed. Compare E.E.O.C. v. Pitre, Inc., 908 F. Supp. 2d 1165, 1177-78 (D.N.M. 2012) (“because the EEOC’s claims fall within the same course of conduct and do not present great individual differences, bifurcation of this matter would increase the efficiency of the trial and is appropriate.”).