Sexual Harassment Policies for the Trucking Industry: Best Practices
by Katherine M. Flett
The current over-the-road driver shortage has created increasing pressures for trucking companies of all sizes. As a result, some trucking companies may be reluctant to terminate – or to not hire – drivers who have been accused of sexual harassment. But this reluctance may not be a good idea in light of Title VII.
Title VII of the Civil Rights Act of 1964 prohibits sexual harassment and retaliation against any employee who complains of sexual harassment to an employer. In addition, Title VII complaints can be filed in any judicial district where: the harassment was alleged to have been committed; the employment records relevant to the harassment claim are maintained and administered; the complainant worked; or if the employer cannot be “found” in one of the first three districts, the complaint can be filed in the district of the employer’s principal place of business.
However, circuit courts have differing standards to determine whether an employer has satisfied its legal obligations under the sexual harassment provisions of Title VII. For example, an employer in the Eighth Circuit fully satisfies its legal obligation under Title VII if it stops the harassment of the complaining employee by the named harasser. In the Ninth and Tenth Circuits, an employer must go a step further and also take action to deter future harassment by other potential harassers.
This presents an issue for long-haul trucking companies, who typically employ drivers who live and travel in multiple states. An employee-driver who lives in Missouri and is sexually harassed by a coworker while driving in Kansas can file a sexual harassment complaint in the Tenth Circuit Court in Kansas, which has a higher standard for employers to meet than the Eighth Circuit in Missouri. Ultimately, trucking companies do not have much control over where an employee-driver may file a complaint, potentially subjecting them to harsher rules of other circuits.
On March 21, 2022, the U.S. Supreme Court declined to review the Eighth Circuit’s decision in Sellars v. CRST Expedited, Inc., which would have addressed the circuit-split between the Eighth and Ninth/Tenth Circuits regarding Title VII. In Sellars a class of female employee-drivers asserted sexual harassment claims, arguing that the employer should have taken additional steps – beyond those that presumably remedied the threat of repeat harassment by known harassers – to affirmatively prevent future harassment. The Eighth Circuit noted that although employers may be required to escalate their response to repeated harassment by the same coworker, they have not adopted other circuits’ requirements that the employer’s response must deter future harassment by any offender.
If the Sellars case, or other similar case, was filed in the Ninth or Tenth Circuits, the outcome would likely not have been in favor of the employer on this issue.
Because long-haul trucking typically spans multiple states and multiple federal circuits, trucking companies would be well-served to institute and enforce sexual harassment policies that comply with the most restrictive circuit in which it operates or its employee-drivers live.
Katherine M. Flett is a member of the litigation team whose primary focus is on assisting clients in insurance defense, business litigation, employment law, transportation and trucking law, and bankruptcy matters. Katherine can be reached at 314.889.7182 or kflett@dmfirm.com.