BNSF must face US EEOC lawsuit alleging hostility toward women at Nebraska railyard

By Jonathan Stempel

Aug 28 (Reuters) - A federal appeals court on Thursday revived a U.S. Equal Employment Opportunity Commission lawsuit accusing BNSF Railway of allowing a severe and pervasive hostile work environment toward women in a western Nebraska railyard.

The 8th U.S. Circuit Court of Appeals in Omaha said a trial judge wrongly dismissed claims that from 2011 to 2022, BNSF subjected train conductor Rena Merker and other female workers at the Alliance railyard to a near daily barrage of sexual harassment by male coworkers, as well as supervisors.

This allegedly included sexual advances, derogatory comments about women's bodies, sexually explicit graffiti at the railyard and on locomotives, soiling of unisex bathrooms, and a dead bird left on the toilet seat of a female conductor's train.

The EEOC accused BNSF of Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on sex.

BNSF is owned by Warren Buffett's conglomerate Berkshire Hathaway BRKa.N. The Fort Worth, Texas-based railroad and its lawyers did not immediately respond to requests for comment.

Writing for a three-judge panel, Circuit Judge Lavenski Smith said the EEOC's claims were plausible, and the trial judge should not have required the agency to show that female workers endured the same harassment by the same people at the same time.

The appeals court also rejected the judge's conclusions that the sexist comments were too "sporadic" and the graffiti could be excused by its "social context"--in a railyard with mainly male employees, rather than a professional office.

"Viewing the evidence in the light most favorable to the EEOC," Smith wrote, "we conclude that a reasonable jury could find that Merker was subjected to harassment that was objectively severe and pervasive."

The EEOC did not immediately respond to requests for comment.

Merker died in January 2024 but the case continued. The appeals court returned it to U.S. District Judge Brian Buescher in Omaha.

Berkshire was not a defendant, and Buffett's Omaha-based conglomerate has minimal involvement in its businesses' day-to-day activities.

The case is EEOC v BNSF Railway Co, 8th U.S. Circuit Court of Appeals, No. 24-2082.