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Title IX Covers Harassment in Truck Driving Program

By Erin Buzuvis, Sudha Setty, and Kristine Newhall

Truck driving is a male-dominated occupation. One source I read says that women are only about 5% of truck drivers nationwide. Like any gender disparity, I expect this one has its defenders; those who say that women are just less interested in doing that type of work, or naturally unqualified for some reason. But as illustrated by the facts of a recent case, women seeking to integrate male professions face discrimination and harassment, suggesting an alternative explanation for women's underrepresentation in this profession.

In 2007, Selenia Wilborn was the only woman in her class in the Tractor-Trailer Truck Driving Program operated by a community college consortium in Alabama. Even though Wilborn was deemed a qualified for the program by the administrator in charge of admissions, her instructor initially refused to accept her to the program due to his belief that women should "be at home making babies." Eventually when two other students dropped out, Wilborn was added in order to the fill the class. But the instructor targeted Wilborn from day one, making sexual jokes in her presence and finding opportunities to touch her. Another instructor participated in the harassment as well, including by allowing a pornographic film to be shown in class. Wilborn reported the harassment to program administrators after the first time it happened; the next day in class, the instructor told the students that if they had problems with the class, they needed to be keep them in the class. Wilborn continued to report her instructors' harassing conduct to the administration, but to no avail. Later, an instructor failed Wilborn on her road test, faulting her for stalling the truck after he grabbed the gear shift out of her hand. He called her "dumbass" and reiterated his position that women should have babies instead of drive trucks. Rather than retake the test, Wilborn quit the program. It was clear to her at that point that the instructors were doing everything they could to keep her from getting her license.

Wilborn sued the community college that administers the program, alleging that the harassment she faced violated Title IX and other laws (including Title VII, on the theory that the truck driving program acted as an employment agency due to its role in placing students in truck driving jobs). A federal court recently decided that the Title IX claims based on sexual harassment survived the college's motion for summary judgment. The court agreed that a jury could find that Wilborn had directed her complaints to the appropriate administrator, who while lacking supervisory authority over Wilborn's instructors, was nevertheless the administrator authorized to receive students' grievances. The fact that this administrator took no action in response to Wilborn's complaints clearly satisfies the deliberate indifference standard.

However, even though the court allowed Wilborn's sexual harassment claim to proceed, it did grant the defendant's motion for summary judgment on her Title IX claims for direct discrimination and retaliation. The court reasoned that both claims were precluded by Wilborn's decision to quit the program, rather then get kicked out. I disagree with the court here. I think that Wilborn sufficiently alleged that she was essentially forced out -- a constructive discharge, to borrow from employment law. Setting aside the harassment, which is covered by her other claim, Wilborn seems to argue that the road test was not administered fairly due to her sex. That should have been enough to predicate a claim for sex discrimination or retaliation for reporting harassment by the instructors.

Fortunately, Title IX may provide Wilborn some relief in the form of a damages award or settlement on her sexual harassment claim. If that happens, this truck driving program and other vocational programs will have stronger motivation to institute and enforce policies to curtail discrimination and harassment. Meanwhile, however, the case offers an explanation for why there are so few female truck drivers.

Decision: Wilborn v. Southern Union State Community College, 2010 WL 1294131(M.D.Ala. Mar 30, 2010.

Full post as published by Title IX Blog on April 16, 2010 (boomark / email).