"Stay Home and Bake Cookies!"

By: Amy Epstein Gluck

Being female in a traditionally dominated male workplace can be tough. Several industries such as fire and police departments, automative services, and construction crews have long contained skewed gender ratios.

Including truckers.

Just ask one female truck driver who filed a complaint late last week in Pennsylvania federal court against her employer, a construction company, alleging:

  • a co-worker commented that she should be “home baking cookies” instead of driving a truck,
  • her co-workers and management called her “mother” or “grandmother” on a daily basis,
  • she was assigned to a truck that was in poor condition, even though better-maintained trucks were available and were assigned to male co-workers,
  • the company paid her less than her male co-workers for similar work, and
  • the office supervisor routinely gave her shifts to male co-worker because, he said, “[the co-worker] has a family to feed.”

At one point, according to the complaint, the company owner “made a point of urinating in front of [the plaintiff]” while she was in her truck at a work site.

Yes, the OWNER.

In her complaint, Karen Nash, the truck driver, claimed gender discrimination based on a hostile work environment alleging constant teasing, ridicule, and being treated differently than similarly situated male truck drivers by co-workers and management on account of her gender.

You can find the complaint, Rush v. Neiswonger Construction Inc., No. 2:05-mc-02025, filed in the U.S. District Court for the Western District of Pennsylvania, here.

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Could The Conduct and Comments Alleged Rise to the Level of Actionable Harassment?

We’ll see. Right now, Ms. Nash’s claims are just allegations.

Title VII of the Civil Rights Act of 1964 (Title VII) and Pennsylvania law, where she filed the case, prohibit discrimination based on or because of an employee’s gender. Sexual harassment is one form of sex discrimination while a “hostile work environment” is one form of sexual harassment.

It is important to understand the kind of conduct, behavior, and comments that can lead to a hostile environment in a workplace. Subjecting an employee to sexually charged comments, conduct, sexual innuendo, and similar conduct may subject an employer to liability under Title VII if it rises to the level of sexual harassment by creating a hostile work environment.

Such comments or conduct must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. And, the sexually charged comments or conduct must be severe or pervasive to the point that the employee herself or himself considers it to be offensive and abusive.

We covered all of this and more in Sexual Harassment Prevention 101.

Here, Ms. Nash (or her attorney) emphasized the incessant nature of the comments and conduct directed at her—likely to attempt to meet the “pervasive” standard.

Does the Company’s Culture Play Into This?

Remember, we’ve written about “company culture” or “organizational climate” a lot as it relates to fire departments, most recently, here and here.

One U of Michigan professor (Go Blue!), who contributed to the 2016 Equal Employment Opportunity Commission (EEOC) Task Force Report on Sexual Harassment, testified before the EEOC that sexual harassment is more prevalent in organizations:

(1) with a skewed gender ratio, such that most employees are male,

(2) job duties and tasks that are historically masculine in nature, and

(3) there is organizational tolerance of offensive behavior.

According to the American Trucking Association (ATA), the number of women in the US trucker population increased to about 6% in 2018. This is an increase. That number held steady at about 4% since the early aughts.

Couple this with a general tolerance for potentially harassing behavior, and you may just get yourself a lawsuit.

My partner Rich Cohen wrote about the scientifically-proven significance of organizational climate here, where he noted: a major study from the National Academies of Sciences, Engineering said that “the strongest, most potent predictor of sexual harassment is essentially the culture of the company ― what the researchers call ‘organizational climate.’”

Employer Takeaway

We’ll see how these factors play out in this case, but a few oft-cited takeaways to remember:

  • gender-based comments and conduct have no place in the workplace,
  • an organization’s leadership sets the culture.

Perhaps urinating in front of one of your only female’s truck while other employees watch does not quite set the right tone. The jury will decide this one.

Amy Epstein Gluck

Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.