In February 2021, we posted about our clients’ quest for justice in their sexual harassment and retaliation class action against CRST Expedited, Inc. At the time, we were waiting for a decision from the Eighth Circuit Court of Appeals.
A lot has happened since then…
The Court decided Plaintiffs’ appeal in this decision. While the Court largely upheld dismissal of Plaintiffs’ claims, it also remanded back to the District Court Plaintiffs’ class retaliation claims for women who were removed from their trucks after reporting sexual harassment after July 2015.
The Court held:
“The change [in layover pay practices] affected only complainants of sexual harassment, with safety complainants being handled on a case-by-case basis. According to CRST’s Head of Human Resources, Angela Stastny, however, CRST intentionally did not inform its employees of the changed policy to “ensure [the HR layover policy was] used for the correct purposes.” Because removed sexual harassment complainants no longer experienced a post-removal net decrease in pay, the district court concluded that the post-2015 class members did not suffer an adverse employment action and granted summary judgment to CRST on their class retaliation claim. The Plaintiffs argue, however, that even though CRST changed its pay policy to compensate removed sexual harassment complainants, its employees were left with the impression that those who complained of sexual harassment could continue to expect the same pay decrease that pre-July 2015 complainants experienced. As discussed above, a reasonable employee before July 2015 would consider CRST’s removal practice to be materially adverse because, due to the interaction of the removal policy and the pay policy, the employee would expect to experience a net decrease in pay after complaining. The record establishes that a reasonable employee after July 2015 would have the same expectation because CRST did not tell its employees about its changed pay policy. We therefore conclude that the post-2015 class members were subject to the same adverse employment action as that experienced by the pre-2015 class members.”
Sellars et al v. CRST Expedited, Inc., 13 F.4th 681, 695-96 (8th Cir. 2021) (emphasis added). Because none of the named plaintiffs in the original suit were still working at CRST when the new policy came into play, we filed a motion to amend the complaint and substitute new plaintiffs willing to pick up the baton.
Over CRST’s objection, the district court granted our motion to amend the complaint.
Meanwhile, in December 2021, Professor Eric Schnapper worked with us to file a Petition for Writ of Certiorari to the United States Supreme Court – that is – a request that the Supreme Court look at the Court of Appeals’ decision to dismiss Plaintiffs’ hostile work environment claims, and its decision to dismiss Plaintiffs’ class retaliation claims. The petition “presents two related circuit conflicts regarding Title VII of the 1964 Civil Rights Act. The Eighth Circuit decision expressly rejects the Ninth Circuit standard regarding when an employer is liable for negligently failing to prevent and respond to co-worker sexual harassment forbidden by section 703. The decision below also refuses to follow the Seventh Circuit’s interpretation of the anti-retaliation provision of section 704(a). The Eighth Circuit rejected those Seventh and Ninth Circuit standards at the express urging of CRST. The decision below is squarely at odds with the interpretation of those provisions by the Equal Employment Opportunity Commission. ”
CRST’s response to the Petition is due shortly. We’ll update the blog when the Supreme Court acts on our Petition.