Five plaintiffs, first line supervisors in a railroad diesel shop, brought sexual harassment, hostile work environment and race discrimination claims against their railroad employer. They alleged that their supervisor harassed by using sexually charged and offensive language and acts over the course of several months. One of the plaintiffs also claimed the supervisor made racial charged and offensive comments to him regarding his Hispanic origin. Despite knowledge of and training in the railroad anti-harassment policies and multiple methods for reporting offensive conduct, none of the plaintiffs complained about the supervisor to railroad management until after filing their charges of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Nebraska Equal Opportunity Commission (NEOC). Once the conduct was reported, the railroad immediately suspended and removed the supervisor from railroad property pending investigation. The railroad proceeded to interview the employees reporting to the supervisor and concluded that the supervisor had violated railroad policies. He resigned from his position and none of the plaintiffs were disciplined for failing to timely report the offensive conduct.
The Honorable Lyle E. Strom, U.S. Senior Judge for the U.S. District Court for the District of Nebraska granted the railroad’s motion for summary judgment. The Court held that even assuming plaintiffs offered sufficient evidence to create a genuine issue of material fact as to each element of their claims, the undisputed facts showed the railroad met the elements of the Ellerth-Faragher affirmative defense. In a lengthy and detailed opinion the U.S. Court of Appeals for the Eighth Circuit affirmed. The Ellerth-Faragher defense provides that, “[i] cases… where the employer took no tangible employment action against the plaintiff, the employer may avoid liability if it demonstrates two elements. First, the employer must show it exercised reasonable care to prevent and correct promptly any harassing behavior. Second, the employer must show the plaintiff employees unreasonably failed to take advantage of any preventive or corrective opportunities the employer provided or to avoid harm otherwise.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The Court held that the railroad met the first element by having a reasonable anti-harassment policy with “multiple channels” to report harassment and prohibiting retaliation for such reporting. The railroad met the second element by taking “swift corrective action” once the offensive behavior was reported. The plaintiffs’ combined failure to withhold reporting the offensive behavior over eight months and failure to take advantage of the railroad’s policies and procedures for reporting was held as unreasonable.
Crawford v. BNSF Ry. Co., 7:10CV05000, Doc. 34 (D. Neb. Apr. 4, 2011), aff’d, 665 F.3d 978 (8th Cir.), cert. den’d, 133 S.Ct. 144 (2012). (Opinion).