A day after agreeing to rehear a sexual harassment case brought by the U.S. Equal Employment Opportunity Commission, a panel of appellate judges upheld their original conclusion gutting the government's case.
With the exception of one footnote, the U.S. Court of Appeals for the Eighth Circuit panel on Tuesday re-issued an opinion that appears to be identical to the original. The panel also denied the EEOC’s petition for rehearing en banc as moot, though an agency spokeswoman said the EEOC on May 9 asked again for en banc review.
As previously reported by The National Law Journal, the EEOC’s suit against trucking giant CRST Van Expedited Inc. involved graphic allegations of sexual harassment by more than 200 newly hired women truckers on long-haul drives with men who were supposed to be training them.
In 2009, a district court judge issued a series of rulings eliminating plaintiffs, culminating in an order dismissing all EEOC claims because the agency did not investigate or attempt to conciliate individual claims before filing suit.
The EEOC on appeal argued that it "had only one claim, the one it attempted to conciliate — that CRST failed to comply with Title VII's mandate that it protect its employees from discrimination based on sex." No other courts, the EEOC said, have required the agency to investigate and conciliate every individual claim before filing a class suit.
In February, the Eighth Circuit largely upheld the district court’s findings, noting that the EEOC didn't interview any witnesses or subpoena any documents to determine if the allegations of the remaining 67 plaintiffs were true. “The present record confirms that the EEOC wholly failed to satisfy its pre-suit obligations as to these 67 women," wrote Judge Lavenski Smith, with a concurrence by Judge William Duane Benton. Judge Diana Murphy dissented.
On May 7, the U.S. Court of Appeals for the Eighth Circuit agreed to a panel rehearing, vacating its February opinion. But in the end, the only apparent difference in the opinion issued on May 8 was a footnote quoting outside counsel hired by one of the plaintiffs conceding his client did not have standing to pursue a claim.