Employers often make policy changes to address potentially discriminatory conditions. If you hope to use the changes as a defense to future bias claims based on the former policy, however, you must communicate them to your employees. A ruling from the U.S. 8th Circuit Court of Appeals (which covers Arkansas employers) recently reinforced the lesson.
CRST is a long-haul trucking firm whose drivers begin and end trips at designated company terminals around the country. The drivers also stay at the terminals between loads as needed. The company’s employment policies applied at the terminals as well as on the trucks.
CRST’s drivers work in pairs so that one can sleep in the truck’s bunks while the other continues to drive. They earn an individualized rate per mile depending on their experience (split-mileage rate).
CRST’s standard pay policy provided for two types of driver pay: (1) an individualized split-mileage rate earned only while driving the truck and (2) set rates earned in other situations, such as layovers longer than 48 hours and time spent waiting for a road to become passable. If management removes a driver from a truck, the company will pay for a hotel room and/or transportation to another terminal or new load as needed.
First harassment policy. Upon being hired, drivers receive a copy of CRST’s sexual harassment procedures and acknowledge to management they will report any such misconduct they experience so they can be removed from the harassing situation. An onboard communication system would allow drivers to contact managers directly from the truck while en route.
Once management received a harassment complaint from a truck-occupying driver, CRST’s practice was to remove the complainants from the situation as soon as practicable, usually at the next stop. The company contended removal was necessary for both the alleged victim’s safety and the facilitation of a prompt HR investigation.
A group of female drivers who had complained about sexual harassment sued CRST alleging the removal from driving upon making a complaint resulted in a net reduction in pay. They pointed out they lost the split-mileage rate and received only the set rate while they were assigned to a terminal awaiting a new assignment.
Second policy. CRST changed its pay policy in July 2015 so sexual harassment complainants removed from trucks would immediately begin earning a set rate of layover pay to offset the loss of the split-mileage rate. The employer didn’t reveal the policy change, however, until after an employee had complained about sexual harassment.
According to CRST’s HR leader, the company intentionally didn’t inform employees about the changed policy to “ensure [the HR layover policy was] used for the correct purposes.”
Did the Unannounced Policy Change Fix the Problem?
The group of female drivers argued CRST removed them from the trucks in retaliation for their sexual harassment complaints. Under Title VII of the Civil Rights Act of 1964, the “antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm,” the 8th Circuit noted. Thus, the female drivers had to show the company’s removal practice was materially adverse, i.e., it “might have dissuaded a reasonable worker from making” a sexual harassment complaint.
Even though CRST changed its pay policy to compensate removed sexual harassment complainants, the drivers argued they were left with the impression that those who complained about the misconduct could continue to expect the same pay decrease imposed by the pre-July 2015 policy. Therefore, the change didn’t serve to correct the policy that could “dissuade a reasonable worker from making” a harassment complaint fearing the associated loss in pay.
The 8th Circuit agreed. Before July 2015, a vast majority of the affected female drivers actually experienced a net decrease in pay upon removal. Therefore, the court concluded a reasonable employee in the pre-2015 driver’s position would expect that complaining about sexual harassment would directly lead to a net pay decline.
Since CRST hadn’t corrected the understandable conclusion that a complaint would lead to a loss of income, the 8th Circuit held the removal policy was still a materially (or significantly) adverse employment action. It continued to discourage employees from making harassment complaints.
Accordingly, the 8th Circuit reversed and sent the case back to the district court to determine if the female drivers had otherwise proved CRST’s actions were sufficient to support a retaliation finding.
The 8th Circuit’s case makes clear “silence is not always golden.” Communication is paramount.
The key in the case against CRST wasn’t whether it eliminated the pay loss that discouraged employees from making sexual harassment complaints. Rather, the important issue was whether the employer corrected their perception they would lose money if they made a complaint.