Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEXUAL HARASSMENT—8th Cir.: BNSF train conductor’s individual, putative class HWE claims revived on appeal, (Sep 2, 2025)

By Jason Albright, J.D.

The EEOC alleged that a male engineer spread rumors that the conductor “was ‘sleeping around’ on a work trip and told her that working on the road ‘was not a woman’s job.’”

BNSF Railway Co. was not entitled to dismissal of the putative class and individual claims of a train conductor, now deceased, who alleged that she and a group of similarly aggrieved women experienced a hostile work environment at the carrier’s rail yard in Alliance, Nebraska. The district court erred in imposing a heightened standard that required the EEOC to plead that “that all the female employees... suffered similar acts of discrimination by the same actors during the same time frame.” As to the conductor’s individual claims, the district court also improperly analyzed each type of alleged harassment—sexist comments, sexual jokes, and sexually explicit graffiti—in isolation to find that each was insufficient (EEOC v. BNSF Railway Co., No. 24-2082 (8th Cir. Aug. 28, 2025)).

Train conductor. The charging party in the case was a train conductor who worked out of BNSF Railway Company’s Alliance Railyard, in Alliance, Nebraska, from October 2011 to March 2022. “On January 17, 2018, [she] filed a charge of discrimination with the EEOC on behalf of herself and other women employed at BNSF, alleging sex-based harassment, disparate treatment, and retaliation.”

EEOC investigation and action. The EEOC investigated her charge and found reasonable cause to believe that BNSF “violated Title VII by subjecting [the conductor] and other female employees at [the Alliance Railyard] to harassment and sexual harassment, beginning as early as November 2011. Unable to secure a conciliation agreement with BNSF, the EEOC “filed this action asserting a hostile-work-environment claim under Title VII and seeking relief for [the conductor] and a class of women who worked out of [the] Alliance [R]ailyard.”

FAC. The EEOC’s first amended complaint (FAC), which brought one count under Title VII for a hostile work environment against BNSF, alleged dozens of instances of harassment, including that male employees made unwelcome sexual advances to female employees followed by aggressive behavior when the women rejected the advances. Male employees also allegedly made unwelcome comments about women’s bodies, sexually explicit jokes in front of supervisors, and derogatory comments about women’s abilities to work at the railroad.

“Welcome to the railroad.” When women reported the harassment, supervisors allegedly brushed off the comments and did not reprimand the male employees. The EEOC alleged that a male engineer spread rumors that the charging party “was ‘sleeping around’ on a work trip and told her that working on the road ‘was not a woman’s job.’” And when she reported this, supervisors allegedly “laughed and responded, ‘Welcome to the railroad.’”

Sexual graffiti. The EEOC also alleged that there was “sexual graffiti that was perpetually present [at the Alliance Railyard] and on the locomotives from 2011 to the present.” It alleged that BNSF “failed to meaningfully address” the graffiti.

Restrooms. Finally, the EEOC alleged that “unisex locomotive restrooms were frequently soiled with urine and feces by male employees,” often for the purpose of harassing women. One male employee, for example, allegedly “told [the conductor] he intentionally rubbed his penis on the locomotive phone and urinated on the toilet seat and walls of the locomotive bathroom because he believed the female employee riding with him was trying to get him in trouble for sexual harassment.”

Individual claims survive motion to dismiss. BNSF moved to dismiss the FAC for failure to state a claim, but the district court found that the EEOC “sufficiently alleged a hostile-work-environment claim on [the conductor’s] behalf.”

Claims on behalf of other women. The district court then held that the EEOC “[f]ailed to [s]tate a [c]laim on [b]ehalf of the [o]ther [f]emale [e]mployees” in the FAC. It found that the EEOC had to plead that the group “suffered similar discrimination by the same actors during the same time frame as the charging party,” and that it was also “required to plead sufficient facts for the defendant to ascertain the relative size of the group for which the EEOC is making a claim.” The district court then gave the EEOC 14 days to amend and cure.

SAC. In its second amended complaint (SAC), the EEOC defined the group as “women who worked in TY&E [Trainmen, Yardmen, and Engineers] and Yard Master positions from March 23, 2017 to the present” at the Alliance Railyard. It alleged that BNSF “employs approximately 485 individuals in TY&E positions and... approximately 8 to 10 individuals in Yard Master positions at [the] Alliance... [R]ailyard.” The SAC also “provided a timeframe during which the harassment occurred”; “generally identified the harassers as men who worked out of [the] Alliance [R]ailyard in TY&E and Yard Master positions, and in related supervisory and management positions”; and “alleged that BNSF was aware of the harassment and failed to take prompt remedial action.” Finally, the EEOC “provided additional details about the harassment that women experienced,” which included “four anonymized exemplars” who suffered harassment at the Alliance Railyard.

Class claims dismissed. The district court granted BNSF’s motion to dismiss the SAC as to all female employees other than the charging party. First, the court found that the EEOC did not adequately plead that “[the charging party], the exemplars, and the other aggrieved individuals experienced the same or similar types of sexual harassment.” Second, the court again held that the EEOC did not adequately plead the size of the group, here because the agency “alleged no factual basis for estimating the rate of turnover.”

Summary judgment for BNSF as to individual claims. The EEOC’s case proceeded on the conductor’s behalf alone, and BNSF moved for summary judgment in December 2023. In its reply brief filed in February 2024, however, the carrier informed the court that the conductor died the month prior. The district court considered the motion nonetheless because the EEOC still had “the authority to continue to prosecute this case—and BNSF [did] not argue otherwise.”

The court ultimately granted summary judgment to BNSF. Among other things, the district court held that the “conduct toward [the conductor]... [did] not rise to the level of an actionable hostile work environment as a matter of law” because it was not sufficiently severe or pervasive to affect a condition of employment.

Appeal. The EEOC appealed to the Eighth Circuit, arguing that the district court adopted “novel pleading requirements” that were inconsistent with the plausibility pleading standard that governs in all civil actions, and that there were genuine issues of material fact as to whether the harassment was sufficiently severe and pervasive to constitute a hostile work environment.

Heightened pleading standard. The appeals court found that the district court erred in requiring the EEOC to plead that “that all the female employees... suffered similar acts of discrimination by the same actors during the same time frame.” This was error, according to the Eighth Circuit, because it impermissibly limited the EEOC’s enforcement authority to the claims presented by the charging party. Indeed, Section 706 of Title VII gives the EEOC “authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals.” And “When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.” In this case, the district court erred when it “effectively introduced Rule 23’s commonality and typicality requirements into the analysis.”

Analysis of types of alleged harassment in isolation. The district court also erred in finding that the EEOC’s claim on behalf of the conductor was not sufficiently severe or pervasive as a matter of law. Here, the district court improperly analyzed each type of alleged harassment—sexist comments, sexual jokes, and sexually explicit graffiti—in isolation to find that each was insufficient.

Viewing the evidence in the light most favorable to the EEOC, the Eighth Circuit concluded that a reasonable jury could find that the conductor was subjected to harassment that was objectively severe and pervasive. She said she frequently endured discriminatory comments—up to three times a week—and saw sexually explicit graffiti every time she worked. She was not merely subjected to sexually inappropriate comments; along with frequent vulgar and sexist comments and jokes, she “endured sexually explicit graffiti, drawings, and photographs posted around the Alliance Railyard, and she was exposed to unsanitary bathroom conditions, arguably done for the purpose of intimidating women,” concluded the appeals court.

Finding that the district court thus erred in granting both BNSF’s motion to dismiss and its motion for summary judgment, the Eighth Circuit reversed and remanded.

The case is No. 24-2082.

Judge: Smith, L.

Attorneys: Luke R. Hertenstein for the EEOC. Adam Jay Kost (Baird Holm) for BNSF Railway Co.

Companies: BNSF Railway Co.

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