Sexual Harassment, Ancient Info, Quirky Question # 82

Quirky Question # 82:

I am the HR director for a mid-sized company.  A number of years ago, one of our employees complained about sexual harassment from a senior executive in the Company.  We investigated and found corroboration for a number of her allegations.  The investigation also revealed that other employees had been mistreated by the executive.

We addressed the situation at that time, though we did not terminate the executive.  Nevertheless, I thought the issues were behind us.  Now, the same employee has filed a new complaint against the same executive.  She’s dragging in all of the issues that arose more than five years ago.  Can she do that?  I’m not a lawyer but I thought referencing these kinds of ancient problems was barred by the statute of limitations?  The complaining employee also has stated somewhat vaguely that she also may assert “common law claims.’  (Sounds to me like she has lawyered up.)  What might these claims be?  Your guidance is appreciated.

Dorrsey’s Analysis:

Your question implicates a number of different issues. You are correct that the statutes of limitation for statutory discrimination claims are relatively short. The federal statute of limitation under Title VII, for example, is 300 days (approximately 10 months). In the few states without a parallel state agency, the statute of limitations is even shorter (180 days, or approximately 6 months). In Minnesota, where my practice is based, the statute of limitations under the Minnesota Human Rights Act is one year. So, your initial instinct that employees should not be able to bring lawsuits based on conduct that occurred long ago has some legitimacy.

In the legal arena, however, as you undoubtedly know, you have to dig a bit deeper to test your first impressions. Although you would have a strong statute of limitations defense if the conduct complained of had occurred five years ago and there had been no problems since, when wrongful conduct (assuming there was some) has occurred within the statutorily protected time period, the statute of limitations defense may not be available to you. In this context, the question of whether the complaining employee may introduce evidence of the prior problems (even those that occurred five years ago) implicates both statute of limitations issues and evidentiary issues. Each are addressed below.

Statute of Limitations

In an interesting, and some respects unusual, case from the Washington Court of Appeals, Jane Doe III v. State of Washington, et al., No. 35130-7-II, (Wash. Ct. App., April 8, 2008) (unpublished), the court examined some of the issues you have raised. The plaintiff in that lawsuit, Jackie Delgado, brought a 7-count complaint based on statutory and common law claims, including hostile work environment sexual harassment and sex discrimination. The trial court dismissed the plaintiff’s lawsuit on statute of limitations grounds, noting that plaintiff’s lawsuit, filed in 2005, was based on conduct occurring 8 years earlier. The court reached this conclusion despite the fact that some of the interaction between Delgado and Green (the alleged harasser) had occurred in 2003. The Washington Court of Appeals reversed the grant of summary judgment on several of Delgado’s claims, including her statutory claims for sexual harassment and sex discrimination.

The appellate court began its analysis by noting that the Washington Law Against Discrimination (WLAD) did not have a statute of limitations. Therefore, under Washington’s general statute of limitations for personal injury claims, a plaintiff must assert discrimination claims within three years. (This highlights a practice pointer I have emphasized in prior Blog analyses – since so much of employment law is state-dependent, it is critical for you to evaluate the laws of the states where the dispute arises. Washington’s 3-year statute of limitations for discrimination claims is atypical.)

The intermediate appellate court then noted that for discrete acts of discrimination (termination, failure to promote, denial of transfer, refusal to hire, etc.), the statute of limitations begins to run “from the date of the alleged wrongful act.” The court noted that “if the statute of limitations period has run, a lawsuit for that discrete act is barred, even if that act relates to others timely alleged in the charges filed.”

Critically, however, the court stressed that hostile work environment claims are “different in kind from discrete acts.” The court observed that a hostile environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice. Therefore, the court found it did not matter that some of the alleged acts fell outside the statute of limitations period, because hostile environment claims are based on “the cumulative effect of individual acts.”

Defendants, however, argued that the 8-year gap between 1994 (when some of the most outrageous conduct ended) and 2002 (when other conduct occurred), demonstrated that the sexual harassment was not part of the same hostile work environment. The appellate court rejected this argument. The court noted that Delgado had been harassed by Green from 1989 through 1994, that Green had threatened to kill her on two occasions between 1989 and 2002, and that she had been harassed in 2002. Interestingly, the court also focused on the impact the sexual harassment had had on Delgado – she had cut her hair, intentionally gained a great deal of weight, dressed poorly, all with intention of making herself unattractive to Green, and avoided large portions of the hospital grounds where she might encounter Green. During the period where she made herself physically unattractive, she was not subjected to sexual harassment.

Finding that Delgado’s claims were not time time-barred, the court noted that the harassment involved the same victim, the same relationship, and the same type of harassment. Moreover, even though the harassment ceased for a lengthy period, the court found that Green continued to “control” Delgado, affecting her physical appearance and her movement at her place of employment. The court observed, “In other words, there is a genuine issue of material fact as to whether Delgado continued to bear the burden of Green’s harassment between 1994 and 1999. There is a genuine issue of material fact as to whether Green’s acts from 1989 to 2002 are part of the same actionable hostile work environment practice.”

What makes this case unusual in my opinion is that the court looked at the impact or effect on the victim in evaluating whether her claims were time-barred. Because she clearly was affected in the period following the cessation of the harassment (cessation attributable to the actions she took to make herself less attractive), the court considered the interim period in determining the ongoing nature of the hostile environment claim. As noted, the court observed, whether Delgado continued to bear the burden affected the limitations calculus. The principle articulated by the court in the Washington case has the potential for significantly altering the way in which limitations periods are determined in hostile environment cases, at least in Washington. If limitations periods are extended to encompass the period in which an employee continues to “bear the burden” of prior harassment, the limitations period could be open-ended. The unanswered question from the case is whether the same decision would have been reached if there had been no subsequent similar acts in 2002. Conceivably, an employee could continue to “bear the burden” of prior harassment look after the harassment ended, regardless of whether the harassment resumed at some point in the future.

A cynical view of the appellate court’s decision is simply the old axiom – bad facts make bad law. There certainly were some terrible facts in the case and it could be that the court was unwilling to leave this particular plaintiff without a remedy. Whether the same analysis will be applied to less egregious contexts remains to be seen.

Evidentiary Issues:

Even if a court did not reach the conclusion that the statute of limitations should reach back eight years, the harasser’s earlier conduct still could become part of any subsequent litigation your employee may institute, based simply on evidentiary considerations.

There are two related questions you should consider when evaluating the evidentiary issue. First, will the evidence be “discoverable” – in other words, will the plaintiff’s lawyer be permitted to explore these past events in interrogatories (written questions the company will have to respond to under oath), document requests, or depositions (under oath question and answer inquiries). The standard for the “discovery” of information in these mechanisms is very broad: is the information directly relevant or “reasonably calculated to lead to the discovery of admissible evidence.” Courts generally are unreceptive to objections to inquiries during the discovery phase of litigation based on an argument of relevancy. Thus, unless you could establish that the plaintiff was seeking the information simply to harass or embarrass your executive (a tough legal hurdle to clear), most of the information pertaining to the past events will be fair game during discovery.

Second, courts have to assess whether information legitimately explored and elicited during the discovery phase of a lawsuit is “admissible” during the judicial proceeding. Here, courts examine whether the information elicited is relevant and whether, even if so, the information’s relevancy is outweighed by the risk of unfair prejudice. This balance is set forth in Rule 403 of the Federal Rules of Evidence, which states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Applying this construct to your situation would lead to the following types of inquiries. What conduct occurred five years ago and is it the same as, similar to, or different from the conduct that recently occurred? What were the executive’s motivations then, and what were his motivations now? Did the executive deny engaging in the conduct which the complaining employee brought to the company’s attention? Did the executive deny engaging in the conduct revealed by your investigation that implicated his interaction with other employees? Has he denied the conduct the employee complained of recently? Did the executive’s response (then and now) implicate issues regarding his veracity?

Depending on how these and other questions are resolved, the information pertaining to his conduct many years ago may or may not be admissible. If the behavior was the same, if his motivations appeared to be the same, if he lied about his conduct then and/or now, a court may find that this evidence should be admitted. If, in contrast, the conduct complained of five years ago was radically different and the executive fully acknowledged the conduct (thereby removing issues regarding his truthfulness from the equation), a court might reach the opposite result.

Another way in which these issues could play out in your lawsuit relates to the adequacy of your company’s response. In your question, you note that “other employees had been mistreated by the executive” but that your company did not fire him. You do not identify the ramifications (if any) for the executive. Did the company discipline him? Suspend him? Demote him? Freeze or reduce his compensation? Your company’s response to the prior problem also could influence the court’s decision on the admissibility of the evidence of these earlier problems, depending in part on the non-statutory claims asserted by the complaining employee. For example, if she alleged that the company was negligent in retaining this executive, or negligent in supervising his conduct since these earlier problems arose (common law claims recognized in many states), the relevancy of the prior conduct becomes more direct.

Common Law Claims:

You also asked about the types of common law claims your employee may assert. As you may know, many common law claims have longer statutes of limitations than do the statutory claims. Depending on the state and the nature of the claim involved, the statutes of limitations may range from two years (for intentional torts) to six years for negligence theories. In a harassment case, the common law claims could include assault, battery, negligent hiring, retention or supervision, and intentional or negligent infliction of emotional distress. Depending on the nature of the conduct in which your executive employee may have engaged, some or all of these claims, and possibly others, may be asserted. Plaintiffs assert these kinds of claims for different reasons, including, among others, the differences in the damages schemes. That is the subject for another day.

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