A federal appeals court's recent decision upholding the dismissal of an employment discrimination claim alleging appalling harassment of hundreds of women in a trucking company's training program demonstrates the ways in which conservative judges on the lower courts are remaking the law in the shadows, with little or no media scrutiny. While the media has aggressively covered the debate over whether the Supreme Court's conservative majority would be engaging in activism if it strikes down the Affordable Care Act, it has largely ignored an even greater degree of activism by many lower court judges. In this case, lower courts created a new rule that will greatly limit the government's ability to fight sexual harassment and other workplace discrimination. The decision demonstrates the need for the media to do a better job of covering the lower courts, where the vast majority of all cases are decided, with only a tiny percentage being taken up by the Supreme Court.

The decision, Peeples v. CRST Van Expedited, Inc., also is a tribute to the judicial legacy of President George W. Bush. A district judge nominated by Bush dismissed the suit, a decision upheld on appeal by a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit in which two more Bush nominees formed the majority, over a strong dissent by a Clinton nominee. Bush nominated and had confirmed 320 lower court judges (and two Supreme Court justices). Bush's nominees were 78 percent male and 82 percent white, and have been “the most conservative on record,” according to a study of their judicial records. Even after almost four years of the Obama Administration, judges nominated by Bush and his Republican predecessors still make up a majority (53 percent) of judges on the courts of appeal.

CRST Expedited is a trucking company based in Iowa. According to the court's opinion, to promote nearly continuous operations, CRST staffs its trucks with two drivers each, who take turns driving and sleeping in the truck's built-in bunk for weeks at a time. New trainees take an initial 28-day training trip with a “Lead Driver” who evaluates the trainee's performance in the form of a “pass/fail driving evaluation.” After the Equal Employment Opportunity Commission began an investigation of alleged harassment in the training program, a CRST human relations official told the EEOC that the Lead-Driver trainee relationship is “really no different than the role of supervisors in other industries and organizations.”

Monika Starke, a former trainee, began the case against CRST by filing a charge of discrimination with the EEOC alleging sexual harassment:

I was hired by the [CRST] on June 22, 2005[,] in the position of Truck Driver. Since my employment began with the Respondent I have been subjected to sexual harassment on two occasions by my Lead Trainers. On July 7, 2005, Bob Smith, Lead Trainer[,] began to make sexual remarks to me whenever he gave me instructions. He told me that the gear stick is not the penis of my husband, I don't have to touch the gear stick so often. “You got big tits for your size, etc. . . [.]” I informed Bob Smith that I was not interested in a sexual relationship with him. On July 14, 2005, I contacted the dispatcher and was told that I could not get off the truck until the next day. On July 18, 2005[,] through August 3, 2005, David Goodman, Lead Trainer, forced me to have unwanted sex with him on several occasions while we were traveling in order to get a passing grade.

Following Starke's charge, the EEOC asked CRST whether other women had reported harassment by Lead Drivers on long-haul trips. As Judge Diana Murphy wrote in her dissenting opinion:

Although many women had reported harassment by trainers or codrivers during long haul trips, CRST furnished to the Commission only two names. The EEOC eventually discovered that several hundred women employees claimed severe sexual harassment by CRST male trainers or driving partners during extended over the road trips. Their allegations against the truck drivers included claims of sexual propositioning, sexual assault, and rape. As the EEOC's investigation continued, it learned that CRST had originally taken minimal action in response to the women's reports of harassment.

CRST declined to cooperate with the EEOC's efforts to resolve the matter via an administrative proceeding, and in 2007 the Bush Administration's EEOC filed suit on behalf of a class of women alleging sexual harassment. CRST asked the court to dismiss the suit prior to trial. Judge Linda Reade, a Bush nominee, did so, holding that the EEOC had failed to give CRST sufficient notice of each allegation against it and that the Lead Drivers were not supervisors of trainees. The court of appeals agreed, and affirmed the principal elements of Judge Reade's decision in an opinion by Judge Lavenski Smith and joined by Judge Duane Benton, both Bush nominees. The court of appeals did reinstate the claims of two women.

In her dissenting opinion, Judge Murphy, a Clinton nominee, took issue with the majority's holdings:

The majority imposes a new requirement that the EEOC must complete its presuit duties for each individual alleged victim of discrimination when pursuing a class claim. This rule places unprecedented obligations on the EEOC and in effect rewards CRST for withholding information from the Commission. In addition I dissent from the holding that CRST's lead drivers are not supervisors of the women trainees assigned to their long haul trips.

The EEOC has asked the Eighth Circuit to reconsider its ruling in the case. There is a chance the court will do so, or that the full court will rehear the three-judge panel's decision; there also is a small chance the Supreme Court might decide to hear the case. The most likely outcome, though, is that like thousands of cases filed each year, the court of appeals will have the final say on whether the vast majority of the women alleging harassment will ever have their day in court. For now, the answer to that question is, “no.”

Although, as the recent saturation coverage given to the Supreme Court arguments on health care reform shows, the media focuses almost exclusively on the Supreme Court, an overwhelming majority of the cases filed in the federal courts are decided at the district court and court of appeals level, and are never heard by the high court. In 2011, 367,692 cases were filed in the district courts and 55,126 were taken up by the courts of appeal; in contrast, in recent years the Supreme Court has heard only about 80 cases per year (0.02 percent of district court filings). Thus, in all but a tiny minority of cases, the lower courts have the final say on who wins, who loses, who even gets a day in court, and what the law is.

The crucial role of the courts of appeal is all the more significant because there is a real question as to whether they are dispensing equal justice for all. A study of courts of appeal decisions in employment discrimination cases has found an "anti-plaintiff effect:"

For a plaintiff victorious at trial in an employment discrimination case, the appellate process offers a chance of retaining victory that cannot meaningfully be distinguished from a coin flip. Meanwhile, a defendant victorious at trial can be assured of retaining that victory after appeal. Defendants, in sharp contrast to plaintiffs, emerge from appellate court in a much better position than they were in when they left trial court. In this surprising plaintiff/defendant difference in the federal courts of appeals, we have unearthed an anti-plaintiff effect that is troublesome.

That such a double standard could exist without attracting public comment can be explained by the scarcity of media coverage of the courts of appeal. The CRST case is an example of this phenomenon. The Eighth Circuit's decision received very little press attention, even though the case involved several hundred women, a number of whom alleged appalling harassment, and both the district court and the court of appeals majority changed the law in ways that, if upheld, will severely restrict the EEOC's ability to combat discrimination in the seven Midwestern states in the appeals court's jurisdiction. According to the Nexis database, The Gazette - the local newspaper in Cedar Rapids, the home of CRST's headquarters - published two short articles by a staff writer and three wire service articles on the case. The Memphis Commercial Appeal ran a two-sentence item on the EEOC's decision to seek rehearing of the panel decision, and an episode of “Dan Rather Reports” on HDNet touched briefly on the case in a segment devoted to driver training safety practices at CRST and other trucking companies. The only other mentions of the case in the Nexis database are from specialty legal publications. In addition, a handful of newspaper websites posted wire service stories on the court of appeals decision.

With so many cases filed in the federal courts each year, journalists cannot be expected to keep abreast of every development. But given the crucial role that the lower courts play in the legal system, the current lack of coverage means that a conservative judiciary is able to operate in the shadows. There is a debate to be had about decisions such as CRST, whether the courts of appeal apply a double standard in employment discrimination cases, and the role that Republican presidents have played in shaping the federal judiciary. Such a debate cannot, however, take place without adequate coverage by the media.