District courts and appellate courts frequently parse evidence in discrimination cases.  There is ample precedent saying they should not.  But, they do.  Workplace Prof blog discusses a case in which the Eighth Circuit picked and chose which evidence it would consider and found for the employer.  See Workplace Prof blog post. Courts are supposed to look at the evidence in discrimination cases as a whole.  But, as my old ROTC instructor, a big, burly NCO, used to say, "If a bullfrog had wings, it would not bump its tail every time it hopped!"

In this lawsuit, EEOC v. CRST Van, the EEOC sued one of the largest transportation companies in the nation for gender based discrimination.  CRST has a training program in which new drivers must successfully complete a 28 day ride with an experienced driver.

In close quarters, this would present many problems for women in a male dominated industry.  The court found that 67 claims were from women who were not identified during the EEOC conilication and investigation stage.  The court denied those claims outright.  The lower court and the appellate court found no liability by lead drivers because they were supposedly not "supervisors."  That means acts of discrimination are not chargeable to the employer unless it can be shown that some manager was aware of the abuse.  If the lead driver were a "supervisor," then the new driver would simply need to show an act of abuse.  The court has imposed a significant burden on an employee far from co-workers or other managers.

The appellate court upheld summary judgment as to 9 of 11 women because the abuse was not "pervasive" enough (mere "offensive utterances" were deemed not enough).  Regarding 21 women, the abuse was found to be by co-workers (since Lead Drivers are supposedly not supervisors).  Of the remaining 11 women, the employer had no liability because the employer supposedly acted promptly. 

The appellate court did reverse an award of $4 million in attorney’s fees to the employer.  The appellate court did reverse summary judgment regarding the named party and another woman.  So, said the court, the employer is not a prevailing party, after all, for now.  See post by Undercover Lawyer. 

So, as Workplace Prof points out, what should have been a pretty clear case of widespread abuse was nickle and dimed to a couple of cases of possible discrimination.  And, gender based discrimination will likely continue at CRST Van…….