Remedying a problem in the wrong way may end up creating more problems for an employer than it solves. In EEOC v. New Prime, Inc., a federal court in Missouri held in that an employer’s policy enacted in response to an earlier sexual harassment suit brought against it was facially discriminatory on the basis of sex.
New Prime, Inc. (“Prime”), an interstate trucking company, requires its drivers to have or to acquire a Commercial Driver’s License (CDL). Those who do not already have their CDL are required to attend the Prime Student Driver (PSD) School, consisting of on-site training followed by on-the-road training with an experienced driver for up to 60,000 miles.
For many years, Prime permitted both male and female trainee employees to drive with experienced drivers of either sex on a “first-come, first-serve” basis. In 2004, however, following a sexual harassment suit brought by three female trainees (presumably on the grounds that they had been harassed by the experienced male drivers assigned to train them), the company “shifted gears.”
The new “same-sex trainer policy” required that female trainees only receive on-the-road training from experienced female drivers, with male trainees only eligible for training with experienced male drivers. Because Prime had “fewer than 5” experienced female trainers during the relevant time period, the company had a waiting list for female drivers in PSD training during the many times when drivers were not available. One female driver expressed her willingness to the company to be trained by a man in order to enter the program, only to be rejected by the company.
The EEOC subsequently filed suit in federal court on behalf of over 600 female applicants and employees, claiming that the policy violated Title VII as a “pattern or practice” that disparately affected women. The court granted summary judgment in the EEOC’s favor, holding that the same-sex trainer policy was “facially discriminatory . . . in that it places limitations on the opportunities for female applicants to be trained versus men.” Furthermore, the policy “created a waiting list for females while none existed for males,” in a manner that “was no small impediment but one which could require women to remain on the waiting list for a year or more while men faced no such delay.”
The court was unpersuaded by the company’s claim that sex was a bona fide occupational qualification (BFOQ) “based on [Prime’s] safety and privacy concerns for women.” Indeed, Prime acknowledged that “a woman’s gender does not interfere with her ability to perform the job of truck driver or to be trained as a truck driver for Prime.” Even if the policy originated as a good-faith measure to prevent future sexual harassment, the court explained, the safety and privacy determination must be each woman’s decision to make, rather than having the employer impose a one-size-fits-all policy.
Finally, the court concluded, after looking at competing case law on both sides of the issue, that there is no limitation period applicable to a Title VII “pattern or practice” lawsuit. As a result, Prime faces potentially significant liability to hundreds of plaintiffs.
This case underscores the importance of considering the potential risks and unintended consequences when modifying employer policies. Although Prime properly took action in response to the earlier sexual harassment suit in order to reduce the likelihood of future incidents, the means it chose (implementing the same-sex trainer policy) alleviated the harassment problem but created an apparent gender discrimination issue. Other available alternatives (notifying employees of the internal harassment complaint process, supervisor training, investigating all complaints promptly and thoroughly, etc.) may well have produced a better outcome for the company. Although it is not always possible to think of every hypothetical situation ahead of time, employers should consider possible future consequences (and consult a legal professional if necessary) prior to modifying their existing policies.