On August 21, 2019, the U.S. Court of Appeals for the First Circuit released a decision that reaffirms that prior incidents of harassment can help to prove an employment discrimination claim even when the statute of limitations bars the plaintiff from bringing an action based on those acts. In Nieves Borges v. El Conquistador Partnership, the First Circuit reversed a grant of summary judgment for a defendant, holding that the district court erred in excluding past evidence of sexual harassment in evaluating the plaintiff’s claim based on more recent conduct. The Court emphasized that “so long as one instance of harassment falls within the statutory limitations period,” “the entire period of the hostile environment may be considered by a court for the purposes of determining liability.” In other words, past conduct is relevant to assessing the nature of an employer’s bad behavior today.
The plaintiff in Nieves Borges took a long time to report the harassment he faced. This is, of course, not unusual in employment discrimination cases in which a worker who experience sexual or other types of harassment fears losing his or her job. The plaintiff had worked at his company as a food service manager for twenty two years when he was terminated in July of 2015. During that time, a high level manager (the Director of Human Resources) had harassed the plaintiff for more than a decade: According to the plaintiff that harassment included unwanted touching and frequent episodes in which the manger would look the plaintiff up and down while pressuring him to go out for drinks. In 2007, the alleged harasser went so far as to proposition the plaintiff over lunch. After that time, the alleged harasser bothered the plaintiff intermittently, even asking him to socialize several times in 2014, but never propositioned him again. But the plaintiff did not report his supervisor’s behavior until 2014, years after the pattern began and after the most severe incident. At summary judgment, the district court agreed with the defendants that most of the incidents were time barred, and declined to consider those incidents when assessing whether the plaintiff experienced a severe or pervasive pattern of sexual harassment in 2014. The district court also held that to prove his claim that he was subjected to a hostile environment the plaintiff had to demonstrate that the conduct he faced was both severe and pervasive.