A federal appeals court has reinstated a lawsuit by the U.S. Equal Employment Opportunity Commission (EEOC) accusing BNSF Railway of fostering a hostile work environment for women at its railyard in Alliance, Nebraska. The 8th U.S. Circuit Court of Appeals ruled on Thursday that a lower court wrongly dismissed the case, which alleges that female employees faced years of harassment and intimidation from both coworkers and supervisors.
According to the EEOC, between 2011 and 2022, train conductor Rena Merker and other women endured repeated sexual harassment ranging from derogatory remarks about their bodies to unwanted sexual advances. The agency also cited incidents of explicit graffiti on locomotives and railyard walls, vandalized restrooms, and even the disturbing discovery of a dead bird placed on the toilet seat of a female worker’s train. The appeals court said these allegations, if proven, demonstrate conduct that was both “severe and pervasive” enough to violate Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on sex.
Writing for the three-judge panel, Circuit Judge Lavenski Smith emphasized that the trial judge erred by requiring the EEOC to prove that female employees were subjected to identical acts of harassment by the same individuals. He also rejected the argument that such behavior could be excused as part of the “social context” of a male-dominated railyard. “Viewing the evidence in the light most favorable to the EEOC,” Smith wrote, “a reasonable jury could find that Merker was subjected to harassment that was objectively severe and pervasive.”
The case carries added poignancy as Merker, the original complainant, died in January 2024. Despite her passing, the EEOC pressed forward, arguing the lawsuit highlights systemic workplace failures that extend beyond her individual experience. The decision now sends the case back to U.S. District Judge Brian Buescher in Omaha for further proceedings.
BNSF, owned by Warren Buffett’s Berkshire Hathaway, has not publicly commented on the ruling. While Berkshire was not named as a defendant, the case places renewed scrutiny on one of its subsidiaries, raising questions about accountability in traditionally male-dominated industries. The EEOC has said the outcome could serve as a critical test of protections for women in challenging work environments such as railyards, where harassment has historically been overlooked.
