Claims of sexual harassment typically involve the behavior of fellow employees.   But, an employer’s potential liability for sexual harassment also extends to conduct by a non-employee, such as a customer, client, or patient, that creates a hostile work environment.

The principle of employer liability for harassment by a non-employee third-party presents particular challenges to the long term care industry.   The problem occurs when the harasser is a resident or patient with dementia or other diminished mental capacity.   Physical violence or sexually inappropriate is sometimes associated with Alzheimer’s or other forms of dementia.   In many cases, courts have recognized behavior that might qualify as sexual harassment in other contexts does not create a hostile work environment for care facility employees directly caring for such patients, because the employee should reasonably expect it to occur.  The unique circumstances involved in caring for dementia patients essentially makes tolerating at least a certain level of bad behavior part of the job.

However, a recent case from the Fifth Circuit (covering Texas, Louisiana, and Mississippi) shows that long term care employers do not always get the benefit of the doubt when it comes to a dementia patient’s alleged sexual harassment of a care center employee.   The case is Gardner v. CLC of Pascagoula, LLC, (5th Cir. 2-7-2019).  The plaintiff in Gardner was a Certified Nursing Assistant (CNA) at an assisted living facility.   She was experienced in working with mentally disabled patients, and was trained in de-escalation and defense tactics for aggressive patients.  Gardner often worked with patients who wither “either physically combative or sexually aggressive.”

The harasser was an elderly resident who lived at the facility for eight years.   Gardner worked with him for three of those years.  The resident had a reputation for groping female employees and becoming physically aggressive when reprimanded.   He was diagnosed with dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson’s Disease.   He was reported to have a “long history” of violent and sexual behavior toward both patients and staff.

Gardner alleged she experienced on a daily basis the resident physically grabbing her and repeatedly making sexual comments and requests.   She documented the resident’s behavior in his chart and routinely complained to supervisors about it. The resident was at one time transferred to a different wing of the facility because of his behavior, but the employer refused the Gardner’s request to be reassigned so she would not have to care for him.  When she attempted to discuss her concerns about the resident’s behavior with her supervisor, there was evidence Gardner’s supervisor laughed and told her to “put [her] big girl panties on and go back to work.”

The facility terminated Gardner after an incident that occurred while she was helping the resident in question attend a therapy session.   As Gardner was trying to help the resident out of bed, he tried to grope her, then punched and pushed her.  Although Gardner disputed it, the facility claimed she swung her fist over the resident’s head and her arm brushed the top of his head in the process.  As she left the resident’s room Gardner uttered an expletive about refusing to do anything else for the resident.  Gardner sustained serious enough injuries in the incident that she went to the ER and ended up missing three months of work. Shortly after returning from leave, the facility fired her for insubordination (refusing to work with the resident), attacking the resident, and violating his rights by swearing in front of him.

The trial court dismissed Gardner’s hostile work environment claims.  The court reasoned that the resident’s “harassing comments and attempts to grope and hit are [not] beyond what a person in Gardner’s position should expect of patients in a nursing home.”  However, the Court of Appeals reversed the grant of summary judgment, concluding that “the evidence of persistent and often physical harassment…is enough to allow a jury to decide whether a reasonable caregiver on the receiving end…would have viewed it as sufficiently severe or pervasive, even considering the medical condition of the harasser.”  The facts significant to the court of appeals seemed to be the frequency of the resident’s conduct (daily), its severity (physical sexual assault and violent outbursts), and its impact on Gardner’s employment (she was on medical leave for three months because of the injuries she sustained in the altercation).  It probably didn’t help that a supervisor was dismissive of Gardner’s concerns.

While the facts in Gardner may show extreme and unusual patient behavior, it nonetheless establishes a troubling precedent for long term care facilities where dementia patients live.   Unlike an employee who can be abruptly terminated, residents in care facilities, particularly those receiving Medicaid benefits, have rights that prevent them from being immediately discharged.   Sometimes such residents have the right to hearing before an administrative law judge, who may or may not agree the patient can be evicted, or who may delay the eviction.  In the meantime, these residents must be cared for.  Depending upon the size of the facility and the number of care giving employees, simply reassigning an employee away from the difficult resident on a permanent basis could be quite difficult.    Long term care facilities will have to be more attentive than ever to balancing the rights of caregiving employees to be free from harassing conduct while also providing adequate care for difficult residents whose bad behavior is often the result of their medical condition.

For an industry that already faces a challenging regulatory and legal environment, the prospect of more sexual harassment jury trials arising out of the behavior of dementia patients is not a welcome development.

Employers that accommodate employees’ temporary disabilities should consider extending the practice to nursing mothers returning to work following maternity leave.   That’s the lesson of a recent opinion from the U.S. Court of Appeals for the Eleventh Circuit  (Hicks v. City of Tuscaloosa, Alabama, 11th Cir., 9/7/2017)    In Hicks, a City police department’s insistence that an officer return to the beat rather than to allowing her work a temporary desk job resulted in a substantial plaintiff verdict.

Continue Reading Court Affirms Six-Figure Verdict to Nursing Mother Who Quit Because of Employer’s Failure to Provide Suitable Breastfeeding Accommodation

Whether Title VII protects employees from discrimination based upon sexual orientation is one of the most contentious employment law issues being litigated in the federal courts today.    EEOC contends Title VII covers sexual orientation, and a handful of district courts have agreed.  But, as of today, every U.S. Court of Appeal to consider the question has ruled that sexual orientation is not a protected status under Title VII.

The Eleventh Circuit is the most recent to weigh in, with a new opinion issued March 10. (Evans v. Georgia Regional Hospital, No. 15-15234).    In a 2-1 ruling, the court held that a female security officer who alleged she was discriminated against because she was a lesbian could not sue for sex discrimination under Title VII.   District Court Judge Martinez, sitting by designation, wrote the opinion of the court, which is not particularly noteworthy and breaks no new ground in its analysis of the issue.   What makes this ruling interesting, however, is the other two judges on the panel wrote separate opinions: Judge Pryor a special concurrence, and Judge Rosenbaum a dissent.  Both the special concurrence and the dissent articulate in a fairly clear way the legal analysis supporting the competing arguments for and against extending Title VII coverage to include sexual orientation.   In so doing, these judges have drawn a map for other circuits and perhaps the Supreme Court to follow, regardless on which side those other courts will rule.

Approximately twenty one states, including Iowa, have amended their civil rights statutes to cover sexual orientation as a protected status.   The language of Title VII, on the other hand, remains essentially the same as when Congress passed the law in 1964.  It prohibits an employer from discrimination in employment because of a person’s “race, color, religion, sex, or national origin.”    Even though Congress has not amended Title VII to include sexual orientation as one of the protected statuses, proponents of broader coverage contend sexual orientation discrimination is a form of sex discrimination, and is therefore already covered under the law.

How does discrimination because of “sex” include “sexual orientation”?   The argument traces its origins to a 1989 Supreme Court decision, Price Waterhouse v. Hopkins.  The Supreme Court ruled Price Waterhouse violated Title VII when it refused to offer partnership to a female senior manager, based in part on the male partners’ beliefs that she was too aggressive and did not act sufficiently feminine.   Price Waterhouse established the rule that an employer may not make employment decisions based upon “sex stereotypes.”  (A more thorough discussion and analysis of the expanding notions of sex discrimination under Title VII is contained in my article published in the January 2017 edition of DRI’s For The Defense, “Pushing the Boundaries of Sex Discrimination Under Title VII: Does Discrimination “Because of Sex” Cover Gender Identity and Sexual Orientation”).

In her dissent in the Evans case, Judge Rosenbaum contends Price Waterhouse “substantially broadened the scope of actionable discriminatory stereotyping under Title VII.   Before Price Waterhouse, Judge Rosenbaum noted that liability for sex stereotyping was “ascriptive”.  That means an employer could violate Title VII by ascribing certain characteristics to individual women based upon a stereotype, without considering whether any individual woman actually possessed the characteristics.   For example, an employer may assume women employees with young children have more family care obligations than men with young children, and as a result give more or better opportunities to men.

Price Waterhouse, however, recognized for the first time a form of what the judge calls “prescriptive” stereotyping.  Judge Rosenbaum explained that, under the prescriptive type, Title VII imposes liability if an employee does not satisfy the discriminator’s stereotyped “prescription” of “what the employee of that protected group should be or how the employee should act.” (emphasis added).   Unlike ascriptive,which attributes stereotyped characteristics to a female employee which she may or may not possess, prescriptive stereotyping treats the female employee less favorably because she fails to conform to the group’s prescribed stereotype.

As it relates to sexual orientation, Judge Rosenbaum contends one of the prescribed stereotypes of a woman is that she is sexually attracted only to men.   Therefore, if an employer terminates a lesbian because she is sexually attracted to women, the employer has acted based upon her failing to conform to the prescribed gender stereotype.  In this view, sexual orientation discrimination is by definition discrimination based upon a gender stereotype, which under Price Waterhouse is discrimination based upon sex.

Not surprisingly, Judge Pryor holds a more limited view of the doctrine of gender non-conformity.    The concurrence distinguishes between an employee’s gender-based “behavior” and her gender “status”.   Claims based upon gender non-conformity focus only on whether the employee’s behavior failed to conform to how the employer believes someone of that gender should act.  Judge Pryor rejects the dissent’s view that Title VII liability exists when an employee’s status deviates from the stereotype of what a person should be.     A person who experiences sexual orientation discrimination may also experience discrimination based upon the failure to conform to a gender stereotype.  But, it is also true one can occur without the other, and as such the concepts must be treated as legally distinct.    To treat the concepts as equivalent, Judge Pryor argues, imposes a false stereotype on gay individuals; namely, that their behavior always deviates from a certain prescribed gender stereotype.

Judge Pryor also rejects the dissent’s view that gender non-conformity, in and of itself, results in Title VII liability.    In the concurrence’s view, gender non-conformity under Price Waterhouse is not a revolutionary new doctrine, but is simply an evidentiary approach to proving sex discrimination.  In other words, an employer’s reliance on gender stereotypes is evidence the employer holds males and females to different standards of behavior.   Discrimination based upon gender non-conforming behavior is used as a proxy for discrimination because of sex.   But, a Title VII plaintiff must always prove that one of the enumerated statuses, in this case sex, is the basis for the employment decision.   Sexual orientation is not a protected status under Title VII; therefore, sexual orientation alone, without evidence the person’s behavior failed to conform to gender stereotypes, does not result in liability.

The competing approaches of the concurrence and dissent are ultimately based competing judicial philosophies.  Specifically, is establishing a new protected status under Title VII the role of Congress or the Courts?   Judge Pryor contends that, because Congress has not made sexual orientation a protected class, the arguments the dissent makes should be made to Congress and not the court.   Judge Rosenbaum disagrees.  During the fifty years since Title VII was enacted, the courts have expanded the meaning of discrimination because of sex more broadly that the law’s sponsors probably intended.  Based on this view, extending its meaning to cover sexual orientation is the next logical step.

The Eleventh Circuit’s opinion is not the last word on this subject.  There are similar cases pending in the Second and Seventh Circuits, and it is likely those courts will issue opinions later this year.  As Congress is not likely to amend Title VII any time soon, there is little doubt the Supreme Court will be asked to take up this issue soon.

The headline was Fox News agreed to pay $20 million to its former anchor Gretchen Carlson to settle a sexual harassment lawsuit against its former CEO Roger Ailes.   This is an extraordinary settlement, and not just because of the amount.   Fox News agreed to a public settlement (usually they are confidential); publicly apologized to Ms. Carlson (usually the employer denies the settlement is an admission of liability); agreed to pay only two months after the suit was filed; and paid even though Fox News itself was not a defendant in the case (Ms. Carlson sued only Ailes personally).

Ailes adamantly denied the allegations when the lawsuit was filed, and still maintains his innocence.   But, in forcing Ailes out as CEO, followed by a settlement of this magnitude, Fox News is essentially admitting Ms. Carlson’s allegations about the culture of sexual harassment and retaliation at the network were true.1

As is often the case with big money settlements in high profile cases, there has been lots of commentary about its broader significance.  One prominent employment law blogger opined the settlement heralds a new era of sexual harassment claims, as aggrieved employees will expect big money for their claims as well.   Others are concerned Fox’s admission it had a problem in its workplace culture is evidence that sexual harassment remains pervasive despite years of awareness and anti-harassment training.

I’m not convinced the Fox News settlement is so consequential, at least for most employers.   The facts that make this case so noteworthy are unique–a former Miss American turned news anchor against a media icon who ran a right leaning and popular news network.

Nonetheless, there is a lesson here that is not necessarily new, but bears reminding.   That is, clear policies, effective procedures, and regular training are important to prevent harassment and protect the company from claims.  But, they make no difference if not followed when the alleged perpetrator is powerful, popular, or influential in the organization.   A common temptation for other managers and even boards of directors is to look the other way, deny, or cover it up when a figure like Ailes is accused of sexual harassment or other misconduct.   Since the Carlson lawsuit was filed, two former employees disclosed they received six and seven figure settlements years before from Fox for sexual harassment claims allegedly involving Ailes.   Yet, he continued as CEO apparently without consequence.   Even if Ailes could be given the benefit of the doubt after one such claim, two (and perhaps more) should have raised red flags there was a ticking time bomb in the CEO’s office.

Contrast the Ailes case with Hewlett Packard’s quick ouster of its prominent CEO after an investigation revealed he had engaged in an inappropriate relationship with an outside contractor.    HP’s stock fell over 8% the day after, but in the end the company maintained its integrity.   Whether Fox News can do so remains to be seen.

Image Credits: from Shutterstock, Creative Commons license, Young Business Woman Counting Money

How to best accommodate pregnant employees is a frequent challenge Iowa employers face.    Pregnant employees may be entitled to protection under the laws prohibiting discrimination on the basis of pregnancy, as well as those requiring equal treatment based upon gender and disability.  Many employers have tried to walk this fine line with policies that allow for accommodation of a temporary disability only if it is the result of an on-the-job injury.   For non-worked related temporary disabilities (which pregnancy presumably is almost all the time), no accommodation is offered.

The theory behind such policies is that it treats similarly situated employees equally, regardless of gender or the nature of the temporary disability.   The distinction is drawn between work and non-work causes of the temporary disability.   The rationale for treating on-the-job injuries differently is that the workers’ compensation law provides an incentive to return injured workers to work as soon as possible, indexso as to avoid paying benefits for temporary total disability.

Until about the last year or so, this was a workable policy for an employer to have.   But, two cases decided last year, one by the U.S. Supreme Court (Young v. UPS)  and one by the Iowa Supreme Court (McQuistion v. City of Clinton) should cause employers to re-visit and possibly change their policies governing temporary disabilities and pregnancy accommodations.

Both cases dealt with employer policies of the type described here.  That is, accommodation was provided for some temporary disabilities, but not others, pregnancy being within those that were not subject to accommodation.   Although the U.S. Supreme Court addressed federal law and the Iowa Supreme Court Iowa law, the practical result from both opinions is the same:  this type of policy is presumed to violate the law against pregnancy discrimination.   The employer can overcome this presumption if it can show the legitimate reason underlying the policy is sufficiently strong to justify the burden it places on pregnant employees.   But, if the practical effect of the employer’s policy is to accommodate a large percentage of non-pregnant while a large percentage on pregnant employees are not accommodated, it will be difficult for the employer to carry its burden.    In the end, a jury will get to decide whether your policy is justified or creates an unreasonable burden.

The best way to avoid litigation is to change the policy that automatically results in pregnancy not being accommodated.   Each and every condition that results in a disability should be evaluated on its own merits to determine whether it can be accommodated.   While this may create more burdens for the employer each time you have to address a pregnancy related request for accommodation, it is more likely to keep you from being sued.

 

Last week, the co-founder of a Minnesota based organization called “Gender Justice” accused the Iowa football team of “pink shaming” its opponents and engaging in what she calls “cognitive bias.”    Jill Gaulder, who also happens to be a former UI professor, claims the infamous pink visitor’s locker room at Kinnick Stadium is “sexist”, “homophobic”, and may subject the University to legal liability under Title IX of the federal Civil Rights laws.

The pink locker room was the brainchild of legendary former coach Hayden Fry. When he took over the perennially losing program in 1979, Fry was looking for every edge available. He had once read that pink had a calming effect on people, and thought the pink locker room would calm the Hawkeye’s opponents. But, Gaulder claims Coach Fry also believed many people associate pink with girls’ bedrooms, and consider pink to be a “sissy” color.   Gaulder contends the pink walls send the message that it’s “bad to be a girl”, because femininity is supposedly associated with weakness.   

 

It’s easy to laugh off Ms. Gaulder’s claims as a publicity stunt. Most people understand the pink locker room is a joke designed to get attention and distract the opposing team. The anti-discrimination laws don’t protect people from being offended by a subliminal message associated with certain colors (assuming there was such a message here, which is debatable).   The law provides a remedy only when a person is subject to some concrete adverse action, or is denied a right or benefit because of gender (or other protected characteristic). Who are the victims here? The Michigan football team? Ohio State? Perhaps Minnesota, which has won only 3 games out of 16 played in Iowa City during the pink locker room era.    

 

But, Ms. Gaulder cannot be so easily dismissed to the extent she is trying to advance the proposition that employment decisions should not be based upon stereotypes, whether gender or otherwise.   Many courts, including our own Eighth Circuit, have recognized that an employer is liable under Title VII not just for employment decisions based upon gender, but also based upon stereotypes about how an employee of a particular gender should act.   To the extent that a person’s language, dress, or color choices impact employment decisions, employers are well advised to proceed with caution so as to avoid decision making based upon sterotypes.

Never has a Iowa Supreme Court’s ruling in an employment dispute generated such strong reaction, not only locally, but internationally.   The case, of course, is Nelson v. Knight, the December 21, 2012 ruling involving the Fort Dodge dentist who was irresistibly attracted to one of his dental assistants. Dr. Knight’s wife, who also worked in his practice, found text messages between the two of them when he left his phone at home.   Most of the texting was benign, but the wife was concerned that if Dr. Knight continued to work with this particular assistant it could lead to a romantic relationship. She demanded the assistant be terminated for the sake of the marriage. Dr. Knight agreed. 

The dental assistant, Melissa Nelson, sued, alleging her firing was illegal sex discrimination under the Iowa Civil Rights Act.    Notably, she did not claim sexual harassment. There was no sexual relationship, no demands for sex, no offensive working environment.   There was no claim Dr. Knight favored male employees compared to female employees. So how did Dr. Knight discriminate against her?  Ms. Nelson’s theory was that Dr. Knight’s attraction to her was in and of itself a form of unlawful sex discrimination.   In other words, if she had been male, Dr. Knight would not have perceived Nelson as a threat to his marriage, and she would not have been fired.

While acknowledging that Nelson’s argument warranted serious consideration, the Iowa Supreme Court ultimately concluded Dr. Knight was not guilty of sex discrimination.   The law recognizes a distinction between an isolated employment decision based upon a particular relationship (or potential relationship), and a decision based upon gender per se, even if the relationship would not have existed if the employee was a hypothetical male. In other words, the Court reasoned, Dr. Knight’s decision to terminate Ms. Nelson was not based upon her gender as such, but was driven completely by his individual feelings regarding a specific person.     There was no evidence Dr. Knight was biased against female employees generally.

This opinion unleashed a firestorm of commentary, most of it critical.    It is notable, however, that virtually all the criticism of the Court’s ruling is based upon the unfairness of the result, and ignores the Court’s extensive discussion of applicable precedent and how it applied to the facts of this particular case.   It is true that Ms. Nelson worked for this dentist a long time, and did nothing wrong. It was not the employee’s fault her boss did not exercise self control such that his wife could not trust him. Even the Iowa Supreme Court acknowledged the termination was unfair (and chided the dentist for giving his fired assistant “a rather ungenerous one month’s severance”). 

I am certainly not defending Dr. Knight here. His conduct caused harm to his own family and his employee, and he put himself in the position of having to choose one over the other.   Unfortunately, Ms. Nelson is the person out of a job. But, the anti-discrimination laws don’t prohibit unfair decisions; or harsh ones; or those based upon an employee’s attractiveness or lack thereof, whether male or female.   If there is no harassment, no coercion, and no evidence of bias against female employees, there is no unlawful discrimination.     It is also important to note that, while this ruling obviously touched some sensitive cultural nerves, it is not a decision that is likely to have significant impact on sex discrimination litigation.    The Court expressly limited its ruling to the unique circumstances that existed in this particular situation.   This case involved a family business owner’s decision to favor his wife’s request over the interests of a particular female employee.   While perhaps unfair, it was not unreasonable for the Court to conclude the Iowa Civil Rights Act does not make such a decision unlawful. 

For some other thoughtful commentary on this decision, I recommend the following:

Rush, Nigut, at Rush on Business;

Thomas, Crane, San Antonio Employment Law Blog

Eric Meyer, at Employer Handbook Blog

Fox Rothchild’s California Employment Law

 

Crystal Henley enrolled in the Kansas City Police Academy in September 2005. By November 8, she was forced to leave and was not able to complete her training to become a police officer.   During her short time at the Academy, Henley claims she was treated more harshly than male trainees, subject to sexual harassment, and even physical assault.   

Almost five years later, in October 2010 Henley filed a lawsuit against the Kansas City Board of Police Commissioners and several of the employees and officials of the police academy, alleging sex discrimination and harassment in violation of her right to equal protection under the Constitution.   The defendants asked the court to dismiss the suit because Henley had failed to first file an administrative charge with the EEOC, as is required to pursue a discrimination and harassment claim under Title VII.   The reason she could not file an EEOC charge, of course, was because too much time had passed—a complainant has only 300 days after the alleged discriminatory conduct. The District Court agreed with the defendants that Henley failed to exhaust her administrative remedies, reasoning that Henley could not “circumvent Title VII requirements by only pleading violations of the Equal Protection Clause [of the Constitution].”  

The Court of Appeals reversed the dismissal of Henley’s gender discrimination claims.  (See ruling here)   While acknowledging that Title VII procedures must be followed for violations of its terms, in Henley’s case, she was relying upon the Equal Protection Clause as the source of her right to be free from gender based discrimination.    If a right is secured by the Constitution independent of Title VII, the Court reasoned, a plaintiff does not have to rely upon Title VII’s remedies to pursue such a claim.   

The Court did not find that Henley actually asserted a plausible claim for gender discrimination based upon the Equal Protection clause. The case was remanded back to the district court to consider that question.   Actually proving the defendants violated her Constitutional rights may be an uphill battle. Nonetheless, this ruling opens new doors gender based discrimination claims for public employees. The most significant practical impact is that potential claims once considered stale because more than 300 days had passed may have new life because of longer limitations periods for Constitutional claims. Public employers should be alert that this case presents yet another employment risk when taking adverse action against employees. 

Two years ago, Judge Linda Reade of the U.S. District Court for the Northern District of Iowa made headlines when she dismissed an EEOC lawsuit on behalf of 270 current and former female long haul drivers of Cedar Rapids based CRST Van Expedited.   What was notable about the decision was not so much the dismissal itself as the order that EEOC pay $4.5 million of the Defendant’s attorneys fees.   (See our post about the decision here).

The blockbuster sanction against EEOC ended with a whimper last week, when a three judge panel of the Eighth Circuit reversed the attorney fee award.   

While the attorney fee reversal is no doubt a significant blow to the Defendant, CRST actually prevailed on most aspects of the appeal.   The attorney fee award was reversed because the Court of Appeals also ruled Judge Reade should not have granted summary judgment with respect to claims of two Plaintiffs, and thus was no longer a "prevailing" defendant.  However, the grant of summary judgment was affirmed on the dismissals of 268 other purported plaintiffs. 

Other than the attorney fee issue, there are two important takeaways from the Circuit Court’s opinion.   First, the Court of Appeals held the claims of 67 plaintiffs were properly dismissed because EEOC did not investigate their claims or provide CRST the opportunity to conciliate before filing suit.   The Eighth Circuit agreed with Judge Reade that Title VII does not allow EEOC to use the discovery process in a lawsuit to fish for new complainants who had never filed an administrative charge. Unless the employer is given notice of the identity of claimants and provided the opportunity to conciliate with respect to those particular claimants during the administrative phase of the process, no lawsuit will be permitted.  

Second, the court affirmed Judge Reade’s holding that the claims of three plaintiffs were barred because they failed to disclose the existence of their sexual harassment claim when they filed for bankruptcy protection. The Court relied upon the doctrine of judicial estoppel, which holds that judicial acceptance of a party’s position in one proceeding bars that party from taking an inconsistent position in another proceeding. In short, by failing to disclose the existence of the sexual harassment claim in the bankruptcy petition, the plaintiffs could not then claim in another court they had a such claim.  The panel did not, however, extend the bar of judicial estoppel to claims the EEOC was pursuing in its own name, even if based upon conduct of the individual plaintiffs who were subject to judicial estoppel. 

This case is not yet over. The two plaintiffs whose cases were reinstated will now have the opportunity to prove their claims in court.   The decision must still be seen as a victory for CRST, however, because the scope of the case is much more manageable than it was before.