Full opinion text
MEMORANDUM OPINION AND ORDER KYLE, District Judge. Introduction This matter came on for trial before the undersigned on December 21-23 and 28-30, 1992 and February 2, 1993. The Plaintiff Class, consisting of women who applied for employment or were employed in hourly positions at a taconite mining facility owned and operated by defendants Eveleth Taconite Company, Eveleth Expansion Company, Oglebay Norton Company, and Oglebay Norton Taconite Company (collectively, “Eveleth Mines”), alleged that Eveleth Mines violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (Title VII), and the Minnesota Human Rights Act, Minn.Stat. § 363.03, subd. 1(2) (1988) (“MHRA”), by discriminating against women on the basis of their sex, including engaging in acts of sexual harassment. On motion of the Plaintiff Class, the litigation was bifurcated into two phases: (1) a “liability” phase to determine whether the defendants violated Title VII and/or MHRA; and if liability was established, (2) a “recovery” phase to determine the eligibility of individual class members for compensatory relief. Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 470 (8th Cir.1984). PLAINTIFFS’ ALLEGATIONS The Plaintiff Class (hereinafter, “Plaintiffs”) allege that Eveleth Mines has engaged in a pattern of discriminatory practices, including discrimination in hiring, and in terms and conditions of employment such as job assignment, promotion, compensation, discipline and training. Plaintiffs also allege sexual discrimination based upon sexual harassment — the existence of a work environment that is hostile to women. DEFENDANTS’ ALLEGATIONS Eveleth Mines and the Union deny the Plaintiffs’ claims and state that hiring practices at Eveleth Mines, as well as the terms and conditions of employment, are conducted in a non-discriminatory manner. Eveleth Mines further alleges that it has had a practice of immediately investigating and correcting sexual harassment when it knows or reasonably should know of its existence, and that it has adhered to that practice at all relevant times. MEMORANDUM OPINION Based upon the admissible evidence adduced at trial and upon all the files, records and proceedings herein, as well as the arguments of counsel, the court issues the following Memorandum Opinion, which shall constitute the Court’s Findings of Fact and Conclusions of law, in accordance with Fed. R.Civ.P. 52(a). I. Procedural Posture As stated above, this matter was brought pursuant to Title VII and MHRA. Jurisdiction and venue are proper in this Court. A. The Named Plaintiffs Named plaintiff Lois Jenson began her employment with Eveleth Mines on March 24, 1975. As of the 1992/1993 proceedings, Jenson was on medical leave from Eveleth Mines. Named plaintiff Patricia Kosmach began her employment with Eveleth Mines on January 21, 1976. As of the 1992/1993 proceedings, Kosmach, who suffers from arterial lateral sclerosis was no longer working at Eveleth Mines. Named plaintiff Kathleen O’Brien Anderson began her employment with Eveleth Mines on July 6, 1976. As of the 1992/1993 proceedings, Anderson was on medical leave from Eveleth Mines. Jenson filed a charge of sex discrimination with the Minnesota Department of Human Rights (“MDHR”) on October 26, 1984. The charge was also filed with the Equal Employment Opportunity Commission (“EEOC”). On March 7,1985, the MDHR issued a memorandum stating that there was probable cause to credit Jenson’s allegation of unfair discriminatory practice by Eveleth Mines, in violation of MHRA. Jenson received a Right to Sue Notice from the EEOC on August 4, 1988. Kosmach filed a charge of discrimination with the EEOC on April 13, 1988. Kosmach’s charge of discrimination included allegations of class-wide discrimination against female employees and applicants. Kosmach received a Right to Sue Notice from the EEOC on August 4, 1988. Anderson filed a charge of discrimination with the EEOC on November 11, 1988. Anderson received a Right to Sue Notice from the EEOC on December 8, 1988. The named plaintiffs are employees within the definition of 42 U.S.C. § 2000e(f), and Minn.Stat. § 363.01, subd. 16. B. The Defendants Defendants Eveleth Taconite Company (“ETCO”) and Eveleth Expansion Company (“EXCO”) do business under the name Eveleth Mines. Eveleth Mines’ labor force is employed by defendant Oglebay Norton Taconite Company (“ONTAC”), a subsidiary of defendant Oglebay Norton Company (“ONCO”), which manages the operation for Eveleth Mines. The defendant Union is a labor organization representing all of Eveleth Mines’ hourly employees. Eveleth Mines is an employer within the definition of 42 U.S.C. § 2000e(b), and Minn. Stat. § 363.01, subd. 17. C. The Litigation Jenson and Kosmach filed their class action Complaint on August 15, 1988. On March 14,1989, they filed an Amended Complaint, adding Anderson as a named plaintiff and joining the Union as a defendant. On December 9, 1991, the named plaintiffs filed a Motion to Amend their Amended Complaint to add claims for compensatory and punitive damages. This Motion was withdrawn on February 3, 1992; it has not been renewed. A hearing on the named plaintiffs’ Motion for Class Certification and a Preliminary Injunction was held in May and June of 1991. On December 16,1991, this Court certified the plaintiff class to consist of: all women who have applied for, or have been employed in hourly positions at Eveleth Mines at any time since December 30, 1983, and who have been, are being, or as the result of the operation of current practices, will be discriminated against with regard to the terms and conditions of their employment because of their sex. 139 F.R.D. at 667. The Court denied the Plaintiffs’ request for a preliminary injunction. Id. II. The Work Place Eveleth Mines mines and processes crude taconite ore into pellets that are sixty-five percent (65%) iron. These pellets are then sold for purposes of being processed into pig iron and, ultimately, steel. Eveleth Mines’ mining operations are divided between two open pit mines covering 8,600 acres (the “Thunderbird Mine”). Ore from the Thunderbird Mine is uncovered, loaded into trucks and then brought to the “primary crusher,” where it is reduced in size. The ore is then transported, by rail, approximately ten miles to Eveleth Mines’ processing facility (the “Fairlane Plant”), where it is converted to taconite pellets. The Thunderbird Mine also has a warehouse facility which serves the mining operation. The Fairlane Plant consists of several large buildings spread out over a large area. When the ore arrives at the Fairlane Plant, it first goes to the “fine crusher” where it is reduced to gravel-sized pieces. Next, the crushed ore proceeds to the “fine ore surge,” where it is stored until processing. Beneath the fine ore surge are rows of conveyor belts and hoppers known as “Mexican feeders.” The Mexican feeders route the crushed ore to the “concentrator.” The area around the Mexican feeders is known as “Mexico.” In the concentrator, the ore is mixed with water and ground in mills until it reaches the consistency of sand. This powder is then sent over revolving drums containing magnets which capture the iron-bearing grains of ore, thereby separating them from waste rock. The concentrate proceeds to the “pellet plant,” where it is rolled in revolving drums and sprayed with a bonding agent to produce pellets approximately one-half inch in diameter. The pellets are then fire-hardened in a kiln. After cooling, the pellets are loaded for rail shipment to Duluth and other destinations. Quality control is an important component of the production process. To that end, pellets are routinely sampled and analyzed at the Fairlane Plant’s laboratory to assure their quality. During periods relevant to this action, the named plaintiffs and Plaintiffs worked at both the Thunderbird Mine and Fairlane Plant, although the majority of Plaintiffs worked at the Fairlane Plant. Plaintiffs worked in all areas of the Fairlane Plant. Eveleth Mines’s work force consists of both hourly and salaried employees. All of the hourly employees are employed in production-related jobs and work at both the Thunderbird Mine and the Fairlane Plant. The hourly workers are divided into two main areas: (1) Maintenance; and (2) Operations. Maintenance workers are required to have craft or technical training, and work as electricians, mechanics, etc. Operations workers are not required to have any special training or education. Job assignments and pay are controlled by the terms of the Collective Bargaining Agreement (“CBA”). (Plfs’ Exh. No. 9.) All hourly employees work in specific job classifications, which are based upon the job that the employee performs. Base pay varies by job class; the higher the job class number, the greater the hourly wage paid to an employee. Most Operations workers begin as Laborers, which along with Janitors, are the positions occupying the lowest job classification, Job Class 2. Most Operations positions are organized into sequences of specific jobs. Gaining entry into a sequence is based solely on an employee’s job seniority; of those persons interested in obtaining the position, the person with the earliest job starting date receives the position. (T. Tr., 713.) Once in a sequence, an employee is assigned a sequence starting date. When an opening occurs in a sequence position other than the bottom position in the sequence, the position is offered to the person in the next lower job class with the earliest sequence starting date. (T. Tr., 714.) If that person accepts the position, that person’s former position is offered to the most senior person in the next lower sequence job, and so on. If all sequence employees refuse to advance to an open position, the least senior member of the sequence can be forced into the position. Sequence employees may decline any and all opportunities to advance in a sequence by “freezing in” to their current positions; that is, when offered a job higher in the sequence, they refuse the position. Both male and female employees choose to “freeze in” and several reasons explain an individual’s decision to do so, including an unwillingness to work the job and/or desiring to remain on the same shift. ’ Until 1975, Eveleth Mines’ hourly work force was composed entirely of men. Thereafter, women began to be hired as hourly employees, beginning with those women who headed households. Eventually women were hired without regard to their domestic status. From 1981 through 1990, women comprised from three to five percent (3-5%) of Eveleth Mines’ hourly work force. In the early 1980’s the taconite industry experienced a wrenching downturn. Eveleth Mines responded to the industry crisis by closing one of its production lines and laying off a significant portion of its hourly work force. Layoffs were handled according to seniority: those employees who were least senior were laid off first. In some eases, employees with a low job starting date, but with a high sequence starting date, lost their sequence jobs, but were able to remain on the job; they were “demoted” into the general pool of laborers. The layoff lasted several years. In 1986 and 1987, Eveleth Mines began to recall workers who had been laid off. In 1988, Eveleth Mines, projecting increasing demand for taconite pellets, decided to reopen its shuttered production line. Maintenance workers were hired in 1988 to prepare the facility for production. In 1989, forty-six (46) individuals were hired into the Operations area; all 46 were hired as laborers. Forty-four (44) were men, two (2) were women. No Operations workers were hired between 1989 and 1992. III. Claims of Sex Discrimination A. Legal Standards Title VII makes it an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such person’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(l). MHRA makes it an unfair employment practice ... (2) for an employer, because of race, color, creed, religion, national origin, [or] sex ... to discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment. Minn.Stat. § 363.03, subd. l(2)(c). In an employment discrimination case tried as a class action, the burden of proof in a class action differs from cases involving individual plaintiffs. A class of plaintiffs must establish by a preponderance of the evidence that the defendant engaged in a “pattern or practice of unlawful discrimination in various company policies.” Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 470 (8th Cir.1984). A pattern or practice is present when “the discriminatory acts were not isolated, insignificant or sporadic, but were repeated, routine, or of a generalized nature.” Catlett v. Missouri Highway and Transp. Comm’n, 828 F.2d 1260, 1265 (8th Cir, 1987), cert. denied, 485 U.S. 1021, 108 S.Ct. 1574, 99 L.Ed.2d 889 (1988); in other words, “discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.” International B’hood of Teamsters v. United States, 431 U.S. 324, 360-62, 97 S.Ct. 1843, 1867-68, 52 L.Ed.2d 396 (1977). In the “ordinary” case, the plaintiff class will produce statistical proof as circumstantial evidence showing some disparity between similarly situated protected and unprotected employees with respect to some term or condition of employment. The statistical proof usually is supplemented with other evidence, such as testimony about specific incidents of discrimination. Although statistical evidence is most common, evidence of specific incidents of discrimination, where available, is important; it may bring “cold numbers convincingly to life.” Teamsters, 431 U.S. at 339, 97 S.Ct. at 1856. Either type of proof alone may be sufficient to establish a pattern or practice of discrimination. Catlett v. Missouri Highway and Transp. Comm’n, 828 F.2d 1260, 1265 (8th Cir.1987). In rebuttal, the defendant employer will attempt to show that the plaintiff class’ “proof is either inaccurate or insignificant.” Teamsters, 431 U.S. at 361, 97 S.Ct. at 1867. If the defendant fails, the “trial court may then conclude that a violation has occurred and determine the appropriate remedy.” Teamsters, 431 U.S. at 361, 97 S.Ct. at 1867. Class action discrimination claims can be brought under either of two theories— disparate treatment or disparate impact — or both. In a “disparate treatment” case, the plaintiff claims the existence of a disparity between men and women in selection rates for a particular job or job benefit and further claims that the disparity is due to unlawful bias against women. See Palmer v. Schultz, 815 F.2d 84, 980 (D.C.Cir.1987). Sometimes the disparity is expressed as the difference between the number of women actually selected and the number of women “one would expect to have been selected, assuming equality in selection rates for men and women.” Id. at 90. If a disparity is found, proof that the disparity was caused by discriminatory animus can be shown by direct or circumstantial evidence. Two types of circumstantial proof may be relied upon: (1) statistical evidence; and (2) anecdotal evidence of incidents of discrimination. Each may alone justify an inference of discriminatory animus, Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15, putting the burden on the defendant to rebut the proof. However, unless statistical proof shows that the disparity is “gross,” Hazlewood School Dist. v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977), anecdotal evidence of discrimination will be an essential teammate in establishing a pattern or practice of disparate treatment. 2 Arthur Larson & Lex K. Larson, Employment Discrimination, § 50.-83(a), at 10-138 (1993) [hereinafter Larson ]. Statistical proof relevant to determining whether a disparity resulted from discriminatory animus seeks to establish the probability that a disparity was “merely a random deviation from perfectly equal selection rates.” Palmer, 815 F.2d at 91. However, even where statistical proof establishes the probability that a disparity was not caused by chance, it cannot determine whether discriminatory animus more likely than not caused the disparity. This is the difference between statistical proof and “legal proof’: the latter is the burden carried by parties to litigation and is the object of a court’s analysis, whereas the former is a tool to be used in determining whether the plaintiff has established the necessary legal proof. In this case, Plaintiffs asserted that disparities greater than two standard deviations would indicate that the disparity between men and women was caused by factors other than chance. See Palmer, 815 F.2d at 96. The Court finds that focusing on disparities of a magnitude approaching two standard deviations is appropriate. However, this measure is not an “automatic” threshold for liability; rather, it is a trigger point at which an inference of discrimination may, but need not be, justified: [statistical evidence showing less marked discrepancies [than two or three standard deviations] will not alone establish that something other than chance is causing the result, but we shall consider it in conjunction with all relevant evidence in determining whether the discrepancies were due to unlawful discrimination. Craik, 731 F.2d at 476 n. 13; see Palmer, 815 F.2d at 97 n. 10 (following Craik). As was noted supra, “the issue for the trier of fact ... is whether the totality of plaintiffs evidence (again including the evidence of the disparity itself) demonstrates that, more likely than not, the disparity resulted from an unlawful discriminatory animus.” Palmer, 815 F.2d at 96-97. Claims of “disparate impact” involve employment practices that are facially neutral in their treatment of different groups, but which in fact have adverse effects which disproportionately fall on one group and cannot be justified by business necessity. Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854-55 n. 15. In disparate impact analysis, proof of discriminatory motive is not required; the focus is on consequences of employment practices, not motivations. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). Accordingly, statistical analysis is more central to claims of disparate impact discrimination, without regard to whether anecdotal evidence is presented. Larson, § 50.84, at 10-142.2. Statistical concerns relevant to the disparate treatment theory of recovery are substantially similar to those raised in the foregoing discussion of disparate impact theory. B. Specific Claims 1. hiring The Plaintiffs’ hiring claim is based on a period of hiring which occurred from May through September, 1989, during which period Eveleth Mines hired 46 hourly workers, all as laborers. Those hires were made from review of 274 applications and resumes, 25 of which were submitted by women; 259 were submitted by men. Eveleth Mines made offers to three women, two of which were accepted. It is not clear how many men were offered employment and how many rejected the offers, but 44 men accepted laborer positions. Initially, the Court notes and rejects Eveleth Mines’ argument that Plaintiffs’ claim of discrimination in hiring is outside the scope of this action. Although the Amended Complaint was filed on March 14, 1989, some two months prior to the commencement of the hiring period, Plaintiffs’ claims of discrimination include alleged acts of discrimination occurring subsequent to the date on which the Amended Complaint was filed. Moreover, the Court does not agree with Eveleth Mines argument that permitting Plaintiffs to press their hiring claims will encourage future litigants to broadly word a complaint in the hopes that later events will provide factual support for their allegations. The Court believes that Fed.R.Civ.P. 8 and 11 provide sufficient protection against abusive and improper pleadings. a. disparate treatment To support their claim of discrimination based upon disparate treatment, Plaintiffs offered the expert testimony of Dr. Rebecca Klem. In May of 1991, Dr. Klem presented statistical evidence of female availability or interest in laborer positions. This proof took two forms. First, Dr. Klem presented applicant-flow data, which was based upon her analysis of the 274 applications which Eveleth Mines’ former Director of Human Resources, Jay Henningsgard, reviewed during the course of the relevant hiring period. Dr. Klem’s analysis indicated that women represented 17.2% of the laborer applicants. Dr. Klem arrived at this calculation by counting the number of applicants who had listed “laborer” or some derivative thereof as their first choice of jobs. The 17.2% availability of women resulted in an expectancy that 8.1 of the 47 laborers hired would be women. The hiring of two women thus created a disparity of 6.1 female hires. Dr. Klem concluded that the standard deviation of the disparity of females hires was 2.55, which exceeded the two standard deviations threshold and indicated to Dr. Klem that women were not hired for reasons other than chance, that is, the percentage of their availability in the applicant pool. Dr. Klem also conducted an analysis of female availability based upon comparative work-force data, which was compiled from 1980 census data. Dr. Klem proposed that the relevant labor market for laborer jobs consisted of individuals employed as laborers, excluding construction, plus the unemployed. She calculated the availability of this population in three separate geographical areas: (1) five counties surrounding Eveleth Mines; (2) nine cities surrounding Eveleth Mines; and (3) St. Louis County, Minnesota. (Plfs’ Exh. No. 72, 73a, 73b.) Based upon the comparative work-force data, Dr. Klem testified that the female availability rate in each of the three relevant labor markets was greater than the 17.2% figure resulting from the applicant-flow data.. Accordingly, the expected number of female hires was higher for each of the labor markets than the applicant flow data, as was the standard deviation of disparity in hiring of females. The standard deviations were 3.26, 3.82, and 3.61, respectively. In February 1993, Dr. Klem refined the applicant-flow data and updated one aspect of the comparative work-force data. For the applicant-flow data, Dr. Klem testified that she had examined all the applications which Eveleth Mines had produced during discovery and gathered all applications which had been submitted between May 15, 1989 and September 25, 1989 — the relevant hiring period. She then divided those applications into two Pools. In Pool I, Dr. Klem placed all applications on which an applicant had listed “laborer” or some derivative thereof as the first choice for jobs. In Pool II, Dr. Klem placed all applications in which an applicant had listed some derivative of “laborer” or had listed “anything” as the first job choice. (T. Tr., 1383-84; Plfs’ Exh. 274.) Dr. Klem testified that the standard deviation of the disparity between male and female hires was 2.11 for Pool I and 2.13 for Pool II. Dr. Klem updated the comparative workforce data from the five-county surrounding area by adding figures from the 1990 census and refining the figures from the 1980 census. (T. Tr., 1445-46; Plfs’ Exh. No. 275.) Based upon 1990 census data, Dr. Klem stated that female availability in the relevant job market was 30.98%, and the standard deviation of the disparity in hiring females was 3.75 standard deviations. (Plfs’ Exh. No. 275.) Plaintiffs presented several incidents of anecdotal evidence of discrimination. Two women testified that they had sought applications during the hiring period and were told that Eveleth Mines was not hiring and that applications were not being taken. One of the women received an application after informing the person that her father was a salaried employee. Plaintiffs also provided testimony that (1) in years past, Eveleth Mines’ manager in charge of personnel had stated that women “did not belong in the mines”, (2) that person and other personnel employees told sexist jokes and made other sexist statements, and (3) Henningsgard provided inconsistent testimony as to the criteria he applied in hiring laborers. In rebuttal, Eveleth Mines’ expert, Dr. Donald McCaughren, presented applicant-flow data based upon the 274 applications which were Henningsgard reviewed during the hiring process. Dr. McCaughren determined that 9.1% of the applicants were women, thereby making the expected number of female hires 4.19. The resulting disparity in hiring of women was 2.19 and the standard deviation of the disparity in hiring was 1.12 standard deviations. A selection process that is subjective and dominated by men “requires particularly close scrutiny.” Craik, 731 F.2d at 474. Such a hiring process may account not only for women’s failure to be selected, it may also account for women’s failure to apply for or otherwise seek consideration. See id.; cf. Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977). Such a process is not, however, a per se violation of Title VII. The Court finds that Dr. Klem’s applicant-flow data is not credible evidence of discrimination. The factual basis for Dr. Klem’s analysis was the applicants’ job choice. However, counting only those applications where “laborer” or “anything” was an applicant’s first choice of jobs unduly limited the relevant population of available applicants. Dr. Klem testified that she was conducting an “availability” analysis; there is nothing in the record which would support a conclusion that availability should be determined by counting an applicant’s first choice. Moreover, the record indicates that all applicants were considered for laborer positions regardless of their first job choice. Having rejected Plaintiffs’ applicant-flow data, the Court is left with Eveleth Mines’ applicant-flow data and Plaintiffs’ comparative work-force data as statistical proof of discrimination in hiring. Both share the positive characteristic of relying on women’s presence as a measure of availability, and not some artificial selection device such as preferred job choice. In addition, the Court recognizes the risk of relying on applicant-flow data where the hiring process is subjective or less than standardized. Moreover, the Court recognizes the fact that the standard deviations of disparity present in each of the two measures are on opposite sides of the two standard deviations mark. Nevertheless, the Court credits Eveleth Mines’ applicant-flow data as the more relevant and reliable statistical proof. The Court finds that Plaintiffs’ comparative work-force data, although a proper measure of availability, see Hazlewood, 433 U.S. at 308 n. 13, 97 S.Ct. at 2742 n. 13, created a materially false view of women’s availability for laborer positions. By including unemployed individuals in the work-force data, Dr. Klem unduly relied on the fact of unemployment. Availability is a measure of interest in a position, (T. Tr., 1453), and general workforce data is helpful to courts only if it indicates some measure of interest. See EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292, 302 (7th Cir.1991). Merely being unemployed does not, in any real sense, make one “available” for employment as a laborer at Eveleth Mines, even though the laborer position is an unskilled, entry-level position. It was undisputed that laborers perform physically-demanding tasks and do so in a variety of conditions. Dr. Klem’s unemployment figures, which include the unemployed from any job, subordinate the role of interest in working as a laborer in a physically challenging environment to the status of needing a job. Because the Court cannot determine how excluding the unemployed would have affected Plaintiffs’ workforce data, the Court cannot draw conclusions about female availability in the relevant work-force without regard to the unemployed. Accordingly, the Court must reject this area of proof. The Court finds Dr. McCaughren’s applicant-flow data to be credible statistical proof of the significance of the disparities in hiring female laborers. The weight of the evidence establishes that Henningsgard reviewed 274 applications during the May 1989 through September 1989 hiring period. Testimony that one woman did not receive an application does not warrant a conclusion that the applications reviewed by Henningsgard inaccurately reflect the available female labor pool. See Dothard, 433 U.S. at 330, 97 S.Ct. at 2727. The same is true for the evidence of ten applications submitted by women which contain dates within the hiring period. (Plfs’ Exh. No. 263.) Plaintiffs did not establish that those applications actually could have been considered by Henningsgard during the hiring period. As was discussed supra, the standard deviation of the disparity in female hiring was 1.12. Accordingly, under Craik, the disparity of female hires alone does not support an inference that women were not hired for reasons other than their representation in the applicant pool. The Court also concludes that Plaintiffs’ anecdotal evidence of discrimination, when considered in light of the lack of statistical proof of discrimination, did not establish by a preponderance of the evidence a pattern or practice of discriminating against women in hiring. The relative absence of testimony concerning specific instances of discrimination is consistent with the relatively weak statistical proof. In addition, Plaintiffs’ references to Eveleth Mines’ reliance on word-of-mouth advertising and subjective criteria does not make Eveleth Mines’ hiring practices discriminatory. Rather, they are considered with the other facts and circumstances of the case. EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 332 (7th Cir.1988). The Court views the alleged statements by Eveleth Mines’ personnel employees in the same vein. In this case, this evidence does not support a finding of disparate treatment. b. disparate impact Under a disparate impact theory, “plaintiff is ... responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989) (citation omitted). Plaintiffs have identified Eveleth Mines’ reliance on word-of-mouth hiring, nepotism, and a “sloppy system for accepting and retaining applications” as the facially neutral policies which discriminate against women. (Plfs’ Post-Trial Brief, at 29.) The Court has concluded that Plaintiffs failed to offer statistical proof showing a meaningful disparity in hiring women for purposes of their disparate treatment theory of recovery. Because Plaintiffs have relied on this same proof for their disparate impact theory, the Court concludes that Plaintiffs have not established class-wide liability on the basis of a disparate impact analysis. In summary, the evidence in this case shows that Plaintiffs have failed to meet then-burden of establishing by a preponderance of the evidence a pattern or practice of sex discrimination in Eveleth Mines’ hiring practices during 1989, under either a disparate treatment or disparate impact analysis. 2. promotions The focus of Plaintiffs’ claim of sex discrimination in Eveleth Mines’ promotional practices is the promotion of hourly employees to “step-up foreman” and “foreman.” Step-up foremen are hourly employees who are given supervisory responsibility over a crew for temporary periods of time. Foremen are permanent salaried management employees, almost all of whom were hourly employees prior to being promoted. Step-up foremen must come from the work crew whose foreman is absent. Step-up foremen receive a pay premium over their regular hourly wage and have all the duties of a foreman, except that they may not discipline hourly employees. Under the terms of the CBA, Eveleth Mines must designate the persons who it will consider for step-up foreman and may designate only a certain number of potential nominees. However, there is no limit on who Eveleth Mines places on the list or on the number of times Eveleth Mines changes the list of names. Until as recently as 1988, there was no specific procedure for selecting foremen; as with step-up foremen, hourly employees were simply approached by management and asked about their desire to become foreman. Openings were not posted and there was no attempt to make the job available to employees on a company-wide basis. It was clear, however, that having been a step-up foreman was a virtual prerequisite for being promoted to foreman: almost every foreman at Eveleth Mines had been a step-up foreman at one time. No promotions to foreman occurred from 1982 to 1988. Only three persons were promoted to step-up foreman between 1982 and 1989; those individuals worked approximately 240 hours as step-up foreman. During those years, foreman needs were met by current foremen through overtime and other arrangements. In support of Plaintiffs’ claim, Dr. Klem devised a different probability sampling analysis, the results of which showed a disparity in promotions of women to step-up foreman. Dr. Klem first derived the number of women who were available for promotion to step-up foreman, basing her calculation upon the percentage of women in Eveleth Mines’ Operations hourly work force — their presence in the work force — and based upon the number of “step-up weeks” per year. No woman has ever been promoted to step-up foreman at Eveleth Mines. Accordingly, Dr. Klem next calculated the disparity between the actual number of step-up weeks worked annually by women — 0—and the expected number of female step-up weeks. Between 1984 and 1982, the standard deviation of the disparity was 4.79. Eveleth Mines limited its rebuttal to challenging the assumptions underlying Dr. Klem’s statistical proof; it did not offer its own statistical proof concerning promotion to step-up foreman and foreman. The presence of a “0” looms large and indicates that Eveleth Mines’ promotion practices have at least a disparate impact on women. However, the Court is troubled by the proof which has been offered in support of Plaintiffs’ claim of class-wide discrimination. First, Plaintiffs failed to offer proof of specific instances in which women were discriminated against in promotions to step-up foreman. Two women did testify that they wanted to be step-up foreman and that they believed that they were qualified, but this is not evidence of unlawful discrimination; it is merely proof of interest and perceived qualifications. Accordingly, Plaintiffs’ statistical proof is critical to establishing the presence of a pattern or practice of discrimination. Second, cross-examination of Dr. Klem revealed that her statistical proof was premised on an assumption that all women, indeed all men, employed as hourly Operations employees were available for promotion to step-up foreman. Dr. Klem further assumed that there were no special qualifications for the position, either in terms of skills or job classification. That is, her measure of availability assumed that all employees were similarly situated. The evidence showed that these assumptions were erroneous. It is undisputed that step-up foremen are usually employees in the higher levels of a job sequence and that they are almost always trained on all the jobs in the sequence. (T. Tr., 725.) In other words, an employee’s job classification and position in a sequence, as well as the employee’s general work experience, are relevant criteria. It cannot be gainsaid that all female employees are not similarly situated in these areas. Because Dr. Klem’s analysis ignored these relevant non-discriminatory differences between female hourly employees, her measure of female availability is not a reliable measure of the number of females who could be expected to be appointed to step-up foreman. Plaintiffs’ statistical proof, therefore, must be rejected; thus, there is no statistical evidence that the disparity in female promotions is due to discriminatory animus. As a result, the Court is left with one piece of Plaintiffs’ proof: the “inexorable zero.” Teamsters, 431 U.S. at 342 n. 23, 97 S.Ct. at 1858 n. 23. No amount of wrangling can change the numerical evidence of disparity which the zero illustrates. However, in spite of the zero, Eveleth Mines sought to prove that its failure to promote women to step-up foreman was not caused by either an employment policy or discriminatory intent; rather, the disparity is caused by unrelated factors, specifically that few women had the training or experience necessary to be considered for step-up foreman and those that did either were not interested in the position, or were not “right” for it. These proffered explanations are insufficient to rebut Plaintiffs’ evidence of discrimination. Employment actions utilizing subjective decisional criteria can be examined under a disparate impact theory. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 991, 108 S.Ct. 2777, 2787, 101 L.Ed.2d 827 (1988). Further, disparate impact theory does not require proof of motive; rather, it only requires that a facially neutral practice be shown to have a disparate impact on women. Assuming arguendo, that its failure to promote any women to step-up foreman alone justifies an inference that Eveleth Mines’ promotion policies have a disproportionate impact on women, Eveleth Mines presented evidence attempting to show that its promotion policy is job-related. Albemarle Paper Co. v. Moody, 422 U.S. 405, 426, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). Eveleth Mines personnel testified that knowledge and experience in the sequence are critical to success as a step-up foreman. Eveleth Mines presented other evidence that the dearth of qualified women was caused by the nature of the seniority system mandated by the CBA, the fact that advancing through sequences is controlled by seniority, and personal choice, that is the ability to “freeze-in” to a position. Choosing to ignore the subjective, and hence suspicious criteria of “attitude” and “interest,” Eveleth Mines concluded that the job-related qualifications to be a step-up foreman reasonably explain why women, who made a later entry into Eveleth Mines’ work force, have not been promoted to step-up foremen. The Court finds that Eveleth Mines has failed to show that its promotion policy is justified. Qualifications for step-up foreman are not dictated by the seniority system or the CBA. Accordingly, anyone who satisfies Eveleth Mines’ criteria may be promoted. However, as discussed supra, Eveleth Mines’ management personnel make promotions to step-up foreman by applying subjective criteria. Two of those criteria, “attitude” and “interest,” are, in light of the sexual stereotypes existing at Eveleth Mines, likely causes of the disparity in promoting women to step-up foremen. See Stender v. Lucky Stores, Inc., 803 F.Supp. 259, 321 (N.D.Cal.1992). In addition, the other criteria — an employee’s knowledge of the jobs in the sequence and the ability to perform those jobs — also involve a degree of subjectivity which precludes those criteria from serving “in a significant way, the legitimate employment goals” of Eveleth Mines. Wards Cove, 490 U.S. at 432, 109 S.Ct. at 2115. The simple fact is that female sequence employees can be identified as potential step-up foremen and given the training needed to prepare them to perform effectively. Eveleth Mines’ foremen and management personnel actively identify male hourly employees who “have the right stuff,” but do not attempt to identify similar female hourly employees. Accordingly, Eveleth Mines has not presented a meaningful justification for the disparate impact worked by its promotion policies. The Court concludes that Plaintiffs have established that Eveleth Mines’ practice of promotions to step-up foreman, which is based upon subjective and ambiguous selection criteria has a disparate impact on women. The Court further concludes that Eveleth Mines’ use of subjective and ambiguous criteria for making promotions to step-up foreman, when combined with Eveleth Mines’ knowledge that women were underrepresented in step-up positions, constitutes proof of discriminatory intent sufficient to support a conclusion that Plaintiffs have proven discriminatory intent beyond a preponderance of the evidence. See Jauregui v. Glendale, 852 F.2d 1128, 1136 (9th Cir.1988); Slender, 803 F.Supp. at 332-333. Plaintiffs, therefore, have also established disparate treatment in promotions to step-up foreman. For all intents and purposes, Plaintiffs’ claim of discrimination in promotion to foreman was tied to their claim of discrimination in promotion to step-up foreman. As was the case with promotions to step-up foreman, no women have been promoted to foreman. However, as with promotions to step-up foreman, the “inexorable zero” is strong proof of, but does not mandate a conclusion that, Eveleth Mines discriminated against women in making promotions to foreman; the burden remained on Plaintiffs to establish a pattern and practice of discrimination, either through disparate treatment or disparate impact. As discussed supra, previous experience as a step-up foreman is critical to being considered for promotion to foreman. Accordingly, the Court also concludes that Eveleth Mines’ practice of making promotions to foreman discriminated against females; by tying promotions to foreman to step-up foreman experience, Eveleth Mines tainted its promotions to foreman with the sex-bias evident in its promotions to step-up foreman. In summary, Plaintiffs have established by a preponderance of the evidence that Eveleth Mines engaged in a pattern or practice of discriminating against women in promotions to step-up foreman and foreman. 3. job upgrades and temporary assignments Plaintiffs contend that Eveleth Mines discriminates against women in job upgrades and temporary assignments. The term “job upgrades” refers to the movement from one position to another, through job postings and bidding. Job upgrades are processed solely on the basis of seniority; the person with the earliest job starting date or sequence starting date receives the upgrade. The term “temporary assignments” refers to short-term job upgrades, which typically last between one and thirty (30) days and arise because a position is temporarily vacant. Temporary assignments are filled according to seniority, although foremen have discretion in filling temporary jobs lasting less than one week; Eveleth Mines schedules run on a weekly basis and thus they are not affected by job changes lasting less than one week. (T. Tr., 729-30, 738.) The evidence in the case does not support a determination that Eveleth Mines has engaged in a pattern or practice of discriminating against women in job upgrades. Plaintiffs’ central contention is that discrimination must exist because women occupy lower job classifications than men with comparable seniority. Perhaps hoping that the truism contained in this assertion will take on a life of its own, Plaintiffs point to (1) instances in which foremen allegedly discouraged women from bidding for positions and (2) the tendency of women to congregate in certain work areas because of the alleged hostile environment. (Plfs’ Post-Trial Mem., at 40-41.) Notwithstanding their allegations, Plaintiffs have failed to prove the essence of their claim that Eveleth Mines discriminates against females in job upgrades: that women were denied job upgrades for which they bid and to which their seniority entitled them. There is no evidence that women were told not to bid for a job, that they were coerced into not bidding for a job, or that their properly filed bids went unrecognized. Similarly, there was no evidence that jobs were so male-dominated that women did not seek to obtain them when they were available. In contrast, there was testimony that some women did not apply for a position or chose to freeze-in to a position because they wanted to stay where they were or because the job available did not appeal to them. In light of such evidence, the fact that women work in lower job classifications does not warrant a conclusion that a pattern or practice of discrimination exists. As for temporary job assignments, the standard applied in pattern or practice cases compels a conclusion that Plaintiffs have failed to carry their burden of proof. Plaintiffs were required to, but did not, show that denying women temporary job assignments was Eveleth Mines’ “standard operating procedure.” Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855. Rather, Plaintiffs merely showed that there were rare instances in which less senior males were given temporary job assignments that should have gone to women. Discrimination that occurs on an “isolated, ‘accidental’ or sporadic” basis is not a pattern or practice of discrimination. Id., 431 U.S. at 336, 97 S.Ct. at 1855. Further, Plaintiffs contention that long term temporary assignments — less than 30 days — could be made without regard to seniority was belied by the evidence; their assertion that only men received those assignments is without an evidentiary basis. In contrast, Eveleth Mines presented credible testimony that except for training assignments, its standard operating procedure is to make temporary joh assignments according to the seniority system. Although assignments under a week in duration do not affect scheduling and thus provide foremen with discretion in whether to fill the position or whether to use it for training, Eveleth Mines presented sufficient evidence to rebut any inference that foremen routinely exercised their discretion in a manner which had the purpose or effect of discriminating against women. In summary, Plaintiffs have failed to establish by a preponderance of the evidence that Eveleth Mines has engaged in a pattern or practice of discriminating against women in job upgrades and temporary job assignments. 4. compensation Plaintiffs contend that Eveleth Mines discriminated against women in compensation. On average, females employed as hourly employees work in lower job classifications than males, (Defs’ Exh. No. 342), the deficit of which ranges from just over two job classifications to over four job classifications. (Defs’ Exh. No. 343.) As was discussed supra, the job classification determines rate of pay. Accordingly, women are paid less per hour and per year than men. In addition, women work fewer total overtime, Sunday/holiday, and shift differential hours than men, thereby earning less non-base pay compensation. (Defs’ Exh. No. 335.) However, for almost every year since 1983, those categories of non-base pay compensation have been a greater percentage of women’s total compensation than men’s. (Defs. Exh. No. 336.) This evidence does not support a claim of discrimination in compensation. Because women’s base pay is less than men’s, it is logical to conclude that non-base pay compensation would be a greater percentage of total compensation for women. Plaintiffs also presented Dr. Klem’s cohort analysis data, which consisted of 2 cohorts: (1) a cohort of male and female workers who were hired in 1975 and who in 1981 worked in jobs occupied by both men and women, and (2) a cohort of male and female workers who were hired in 1976 and who in 1981 worked in jobs occupied by both men and women. Dr. Klem presented compensation trends for these cohorts from 1981 through 1992. The analysis showed that for the 1975 cohort, men made anywhere $41.60 to $196.31 more per month than women. For the 1976 cohort, men made anywhere from $8.86 to $101.95 more per month than women. Dr. Klem did not perform any tests of statistical significance on the numerical data generated by the cohort analysis. The disparity in the cohorts between the total compensation paid to men and women was not attributed to disparities in base pay, as men and women in the same job classification receive the same base pay. Dr. Klem believed that the disparity was produced by non-base pay compensation, particularly overtime. (Ill, 64-65.) That men received compensation greater than women over the periods measured is not evidence that Eveleth Mines discriminates against women in compensation. Employees’ pay and opportunities for non-base pay compensation are determined by the CBA. Under the terms of the CBA, overtime is offered so as to equalize all employees’ opportunities to work overtime; those with the least overtime hours worked or rejected are offered overtime before other employees. All employees are free to reject overtime, unless Eveleth Mines needs workers to put in overtime hours. Plaintiffs’ cohort analysis, although detailed and comprehensive, is not credible proof of discrimination against women in compensation. Plaintiffs have not attempted to identify or analyze the specific causes of the disparity; mere disparity in compensation does not account for an individual’s choice to freeze into a job classification, accept or reject overtime, or secure full-time day shift assignments. In addition, Plaintiffs’ proof does not account for the relative availability of overtime for different shifts and job classifications. Accordingly, even though the Court assumes that Plaintiffs’ cohort analysis is accurate, it is unconvinced that simple disparities in compensation, in the absence of any statistical measures of significance or anecdotal evidence, support a conclusion that Eveleth Mines has engaged in a pattern or practice of discriminating against women in compensation. 5. training Plaintiffs claim that there was a pattern or practice of discriminating against women in training opportunities. Specifically, Plaintiffs claim that women are not trained in the duties of jobs other than their own to the same extent as males. It is an unwritten policy at Eveleth Mines that all employees be trained in jobs 1-2 levels above their own. (T. Tr., 738.) This includes (1) training laborers on jobs which they could fill outside of a sequence or at the bottom of a sequence, and (2) training sequence employees on sequence jobs 1-2 levels above their own. (T. Tr., 154-55.) Job-related training is provided so as to ensure that Eveleth Mines will be able to temporarily fill job vacancies as they occur, thereby promoting an effective and efficient operation. {See T. Tr., 1179.) Training an employee on a job takes approximately forty (40) hours. Eveleth Mines does not have a policy of training employees on all jobs within a sequence. Training opportunities arise through the foreman’s decision to place someone in a position on an ad hoc basis, or the foreman may take the advantage of a temporary vacancy and insert a person into that vacancy without regard to seniority. (T. Tr., 1155, 1169-70.) If an employee believes that a less senior employee was improperly upgraded, even if training is the stated reason for the upgrade, the senior employee can complain to the foreman and/or file a grievance. Similarly, if an employee believes that she has not received the training to which she is entitled, she can raise the issue with her foreman and/or grieve. (T. Tr., 1156.) Whether an employee has been trained in a given job does not affect her ability to receive an upgrade — upgrades are controlled by seniority; prior training, however, may impact an employee’s ability to obtain short-term temporary job assignments. Training is also important because it provides employees with knowledge of jobs higher in the sequence, which is a prerequisite to being promoted to step-up foreman. As discussed supra, Part III.B.2, step-up foremen generally must have knowledge of all the jobs in a sequence, but they need not work in the highest job in the sequence. Plaintiffs have failed to show a pattern or practice of discrimination against women in Eveleth Mines’ job-related training. Eveleth Mines’ training policy exists to protect its productivity. Importantly, there was no evidence that the training policy is either a de jure or de facto means of grooming only male employees for promotion. At most, preparation for step-up foreman is an incidental benefit. The evidence adduced at trial shows that Eveleth Mines’ routinely provided training opportunities to both men and women on an equal basis. Some female employees testified that they had not been trained in jobs 1-2 levels above their own, (see for example, T. Tr., 168-69), but the evidence did not indicate that those training failures were due to the fact that they were women. Moreover, a policy and practice of discrimination demands more than inconsistent treatment of a few class members. Finally, that women were not promoted to step-up foreman is not itself proof that Eveleth Mines discriminated against women in training. C. Summary of Sex Discrimination Claims In summary, Plaintiffs have established by a preponderance of the evidence that Eveleth Mines engaged in a pattern or practice of discriminating against women in promotions to step-up foreman and foreman on the basis of their sex. Plaintiffs’ proof is insufficient to establish class-wide liability on then-claims of sex discrimination in hiring, job upgrades and temporary assignments, compensation, hiring into craft positions, discipline, retaliation and training. IV. Claims of Sexual Harassment A. Legal Standards 1. Legal Standards Applicable to Individual Claims of Sexual Harassment Title VII makes it an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such person’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(l). Harassment on the basis of sex is undeniably a form of sex discrimination. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986); see 1 Larson, § 41.62. Sexual harassment includes unwelcome “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature [that has] the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” EEOC Employment Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604.11(a) (1985) Such harassment is known as “hostile environment” sexual harassment. To be actionable under the hostile environment theory, acts of sexual harassment must be sufficiently pervasive or severe to “alter the conditions of the victim’s employment and create abusive working conditions.” Meritor, 477 U.S. at 67, 106 S.Ct. at 2405 (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir.1982)). Whether the sexual conduct complained of is sufficiently severe or pervasive to create a hostile work environment must be determined from the totality of the circumstances. Henson, 682 F.2d at 904; accord 29 C.F.R. § 1604.11(b). MHRA makes it an unfair employment practice ... (2) for an employer, because of sex ... to discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment. Minn.Stat. § 363.03, subd. l(2)(c). Claims of discrimination based upon sex include claims of sexual harassment. Minn.Stat. § 363.01, subd. 14. Since Mentor, hostile environment claims by individuals have been common in Title VII litigation. In the Eighth Circuit, an individual plaintiff alleging sex discrimination on the basis of hostile environment sexual harassment must prove that (1) she belongs to a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based upon sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take proper remedial action. Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559 (8th Cir.1992) (McGregor I), on remand, 807 F.Supp. 506 (N.D.Iowa 1992), rev’d, 989 F.2d 959 (8th Cir.1993) (McGregor II). Plaintiffs claim that they have been subject to sexual harassment through the maintenance of a hostile environment at the Thunderbird Mine and Fairlane Plant. By maintaining their sexual harassment claims as a class action, Plaintiffs seek to expand sexual harassment discrimination to a new arena; to the Court’s knowledge, no class of plaintiffs has ever maintained through trial a claim of sexual harassment. 2. Legal Standards Applicable to Class Claims As was discussed supra, Part III.A, class action claims brought under Title VII require a plaintiff class to establish by a preponderance of the evidence that the defendant engaged in a “pattern or practice of unlawful discrimination in various company policies.” Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 470 (8th Cir.1984). A pattern or practice is present when “the discriminatory acts were not isolated, insignificant or sporadic, but were repeated, routine, or of a generalized nature,” Catlett v. Missouri Highway and Transp. Comm’n, 828 F.2d 1260, 1265 (8th Cir.1987), in other words, “discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 360-62, 97 S.Ct. 1843, 1867-68, 52 L.Ed.2d 396 (1977). In the usual “pattern or practice” case— for example, an alleged pattern or practice of discrimination in hiring on the basis of sex— a determination in the liability phase that the employer engaged in a pattern or practice of discrimination entitles the plaintiff class to appropriate prospective relief and entitles each member of the class to a presumption that the employer unlawfully discriminated against her. Craik, 731 F.2d at 470. Thus, in the recovery phase the burden of persuasion shifts to the employer to show that it did not discriminate against individual members of the class who show that they are potential victims of the proved discrimination, e.g., they applied for a job and were not hired. Id. (quoting Teamsters, 431 U.S. at 362, 97 S.Ct. at 1868). Where, however, a plaintiff class brings a claim of sexual harassment based upon hostile environment, the determination made after the liability phase, and hence the allocation of burdens in the recovery phase, is different. The liability phase is limited to determining whether the plaintiff class has established that the employer engaged in pattern or practice of exposing women to a sexually hostile environment. This determination is the focus of the liability phase because at issue therein is the common question of law which makes a class action an appropriate vehicle for prosecuting claims of sexual harassment: “whether a reasonable woman would find the work environment hostile.” See Jenson, 139 F.R.D. at 665. Should the employer be found to have engaged in a pattern or practice of discriminating against women by maintaining a hostile environment, the plaintiff class will be eligible for appropriate prospective relief and other remedies consistent with a finding of liability in other pattern or practice cases. However, the nature of a hostile environment claim mandates that the nature of the recovery phase differ from traditional pattern and practice cases. Specifically, a determination that the employer engaged in a pattern or practice of discrimination by maintaining a hostile environment does not entitle every member of the plaintiff class to a presumption that they were sexually harassed — the burden of persuasion does not shift to the employer. Cf. Craik, 731 F.2d at 470 (disc