By Marjorie Johnson, J.D.
Because a HWE claim may be built on the “accumulated effect” of behaviors that individually fall short of actionable harassment, a timely “anchoring act” need not be actionable under Title VII; it only needs to contribute to the hostile environment.
Reversing the grant of summary judgment against the Title VII hostile work environment claim of an employee who was purportedly subjected to 13 years of sexual harassment by his HR director, the First Circuit found that the court below incorrectly held that incidents that occurred earlier than 2014 were time-barred. The court remanded for consideration of the evidence covering the entire period of alleged harassment, while also directing the lower court to properly apply the “because of sex” standard (which includes “implicit proposals of sexual activity”) and to adhere to the alternative nature of the “severe or pervasive” element. And while dismissal of his retaliation claim was affirmed, the appeals court clarified the but-for causation standard, as urged by the EEOC as amicus (Nieves-Borges v. El Conquistador Partnership, L.P., S.E. dba El Conquistador Resort, August 21, 2019, Lipez, K.).
Years-long harassment. The employee worked at a Puerto Rico resort as a food and beverage manager. From 2001 to 2014, the HR director purportedly subjected him to ongoing sexual harassment, including touching him a “gazillion times,” regularly examining his body “from up to down” in a very sexual manner, and repeatedly asking to socialize after hours. He never reported the harassment out of fear for his job security.
Hotel room invite. In particular, the employee claimed that while at a convention in 2007, the HR director invited him to join other resort managers for lunch. No one else arrived and as the two men finished lunch, the HR director allegedly put his hand on the employee’s leg and said “what [do] we do next” while shaking his hotel keys in the air.
2014 incidents. The employee also described three incidents in 2014 when the HR director asked him over to his house after work. On May 26, the director said that he wanted to show him “something.” Then on July 3, he asked the employee over to discuss work-related matters. Finally, on August 19, he invited the employee over for drinks while touching his hands and looking at him sexually. In October, the director also purportedly stared at him in a “predatory manner” in the cafeteria.
Complaint. On August 21, the employee’s supervisor told him that at the HR director’s direction, he was being transferred to the night shift at a different location. Distressed, he sought medical attention and took leave. On September 30, he reported the HR director’s harassment for the first time in a 13-page internal complaint, and returned to work a few days later. He was notified the following January that the HR director no longer worked there and was assured that his supervisor had “a clear understanding” of the anti-harassment policies.
Misconduct leads to discharge. Over the next six months, he was disciplined three times for misconduct, including falsification of time records. He was ultimately terminated in July after management learned that he attended a promotional event associated with his family business on a day that he had called off sick. Meanwhile, in February 2015, he had filed an EEOC charge alleging hostile work environment and retaliation and this lawsuit eventually followed.
Summary judgment granted. Tossing his hostile work environment claim, the district court found that since none of the acts that allegedly occurred within the applicable Title VII statute of limitations could be found to constitute actionable sexual harassment, it could not rely on any of the earlier incidents. Additionally, the court found he could not show the harassment was based on sex or was sufficiently “severe and pervasive. His retaliation claim was also tossed for lack of causation.
Earlier harassment should have been considered. On appeal, the First Circuit found the district court erred in limiting its assessment of the employee’s hostile work environment claim to conduct that occurred in 2014 based on its view that unless this conduct amounted to actionable sexual harassment, all prior incidents were time-barred. Finding this time restriction to be erroneous, the appeals court explained that if at least one instance of harassment falls within the statutory limitations period, the entire time period of the hostile environment should be considered to determine liability. Because the hostile work environment claim may be built on the “accumulated effect” of behaviors that individually fall short, a timely “anchoring act” need not itself be actionable under Title VII. It must only “contribute to” the hostile environment.
Timely sexually charged incidents. Here, a jury could reasonably find the incidents that allegedly occurred in 2014 were timely instances of the claimed pattern of sexually charged interactions. Because these acts could be reasonably deemed as having “contributed to” the alleged hostile environment, the full history of the HR director’s alleged interactions should have been considered.
Other flawed reasoning. The district court also appeared to have “mistaken the degree of explicitness” required to establish a sex-based motive since it stated that the employee offered no evidence, “like sexual propositions, groping, or comments about engaging in sexual relations,” permitting an inference that the HR director targeted him “because of his gender.” However, the employee’s claim did not depend on evidence of “explicit” sexual propositions. Rather, sex-based motivation may be inferred from “implicit proposals” of sexual activity. The court also appeared to have mistakenly required a showing of both severity and pervasiveness, framing the inquiry multiple times in the conjunctive.
Transfer not retaliatory. On appeal, the employee only relied upon his transfer to support his retaliation claim, which went into effect when he returned to work four days after he filed his internal complaint. However, summary judgment was properly granted against him since the decision was announced six weeks earlier, and therefore no causal connection could be inferred.
But-for causation clarified. Though the employee didn’t appeal the determination that his suspensions and termination were not retaliatory, the EEOC as amicus sought clarification since the district court had observed that even if he had proved that he would not have been fired but for his EEOC charge, the defendants “met their burden of providing a non-discriminatory reason for his suspension and termination.” In a footnote, the First Circuit clarified that this reasoning was flawed, and if the employee proved that he would not have been suspended or fired “but for” his protected conduct, the resort’s additional, nonretaliatory explanations would not defeat the claim.
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