On March 24, 2017, the Ninth Circuit determined in Anderson v. CRST International, Inc., et al, No. 15-55556 that a jury could find that an employer’s remedy in response to a female truck driver’s sexual harassment complaint was not enough even though the employer separated her from the offending co-worker. The Ninth Circuit explained: “ Anderson presents evidence that CRST never actually investigated her complaint and never informed Vegtel of the fact that he was prohibited from driving with female truck drivers in the future.” This holding leaves open an interesting question of the extent of an employer’s obligation to inform an employee of the reparative action taken. Most employers refuse to share that information with complaining employees, citing to confidentiality of personnel records. That approach can now be challenged with this precedent.
The Ninth Circuit also reversed summary judgment because of the way that the employer treated the female truck driver after she complained, holding that a jury could find retaliation because the employer failed to reassign her to a new truck route after the incident while providing her with an ambiguous email with a list of other female truck drivers with whom she could work. The Ninth Circuit made clear that “an employer’s remedy is not effective even though it stops harassment if the remedy targets the victim and puts her in a worse position.”
Also, on February 23, 2017, the Ninth Circuit determined in Zetwick v. County of Yolo, No. 14-17341 that a jury could find that a male sheriff created a hostile or abusive work environment through his conduct of hugging and kissing female employees more frequently and in a different way than male employees. The Ninth Circuit rejected the argument that hugging could only constitute “ordinary workplace socializing.” This case also highlights that applying Title VII is not a “mathematically precise test” but, rather, a Court must truly consider the totality of the circumstances.