EEOC-Initiated Litigation - 2022 Edition

50 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP 2. Case Law Developments Involving Harassment Claims The EEOC has had plenty of opportunity to shape the law of sexual harassment through its litigation activities. Those cases often hinge on two issues: whether the alleged actions rise to the level of unlawful harassment, and whether an employer can be held liable for harassment perpetrated by employees. a. Decisions About What Constitutes Actionable Harassment The question of whether a pattern of conduct rises to the level of actionably harassment is highly fact- intensive and fraught with difficult judgment calls concerning the mental states of both the harasser and the victim. For example, in EEOC v. Ecology Services, Inc. , 367 the EEOC alleged that the employer had subjected the charging party to a hostile work environment when it failed to correct the sexually harassing behavior of her co-worker. The case went to trial, and the court had to weigh substantial evidence regarding the harassing behavior. Ultimately, the court ruled in favor of the employer. Although the EEOC had introduced voluminous evidence of sexually harassing activity, the court found that evidence to be so riddled with inconsistencies and contradictions that it undermined the EEOC’s case. For example, the court noted that: “[Charging party] stated [alleged harasser] made inappropriate comments about her breasts and buttocks every time they worked together. Although she said these were made while co-workers were present, she failed to name any co-workers at any specific time the comments were made.” 368 And in response to the charging party’s claim that her co-worker propositioned her for sex on multiple occasions, the court noted that: “It makes little sense that [charging party] was subjected to this hostile environment, was so intimidated that she felt she could not report it and then approached the harasser and asked for a loan. I find her allegations regarding the propositioning of sex for money to be incredible.” 369 The charging party had also testified that her co-worker had “climbed up onto the [engine cover of the truck], exposed his penis to her, grabbed her right hand off the steering wheel while she was driving at 40- 50 miles an hour and made her touch his exposed penis. ” 370 But the court noted the heat and physical dimensions of the engine cover would make that difficult, if not impossible, and that her claim that she never lost control of the truck was inconsistent with her testimony that she punched and pushed him. With respect to this instance, the court concluded as follows: “What also strikes the court is the fact that if [alleged harasser] had committed the act once already, would not [charging party] be on high alert or somehow noticing he was again climbing up onto the [engine cover] and taking down his pants? She indicated she did not notice him climbing up a second time. She did not report the incidents when they happened. Again, her story defies logic and I find that the evidence contradicts her testimony. ” 371 The court also could not credit the EEOC’s efforts to establish employer liability, holding that it had "failed to produce credible evidence that [charging party] reported the conduct to her supervisors in order to correct the sexual harassment. ” 372 The court concluded as follows: “The testimony and facts do not support any of her allegations and in fact contradict the physical possibility that certain acts like the illegal touching in the cab of the truck could have even occurred. While I believe that there was something going on between [charging party] and [alleged harasser], which could have been an inability to work together, the evidence does not rise to the level of a hostile work environment that was so severe and pervasive it caused the constructive discharge of [charging party].” 373 In EEOC v. New Prime Inc. , 374 the U.S. District Court for the Western District of Missouri allowed a sexual harassment claim to proceed to trial, holding that live testimony was necessary to flesh out and understand the statements made in text messages. In that case, a truck driver alleged that she was subjected to sexual harassment by her co-driver, who allegedly “asked her for sex and made sexual comments every 367 EEOC v. Ecology Services, Inc. , No. 18-CV-1065, 2021 WL 3549978 (D. Md. Aug. 11, 2021). 368 Id . at *8. 369 Id . at *9. 370 Id . 371 Id . at *10. 372 Id . 373 Id . at *12. 374 EEOC v. New Prime Inc. , No. 6:18-CV-3177, 2020 WL 555389 (W.D. Mo. Feb. 4, 2020).