The First Circuit Reaffirms that Prior Conduct Can Prove Current Sexual Harassment or Other Discriminatory Harassment
On August 21, 2019, the U.S. Court of Appeals for the First Circuit released a decision that reaffirms that a hostile work environment claim can span many years, so long as some of the acts that are part of the broader pattern of harassment occurred within the statute of limitations period. 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 claims. 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 part of the broader pattern of harassment at issue and is therefore relevant to assessing the nature of an employer’s bad behavior.
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 manager 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 well after the most severe incident. At summary judgment, the district court refused to consider the older incidents, because none of the acts that occurred after 2014 rose to the level of sexual harassment. 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.
The First Circuit disagreed with the district court’s analysis. The plaintiff had pointed to a few instances in the year before he filed in which he had been harassed, namely, that the alleged harasser had asked him to spent time together outside of work several times. The court found that on their own, the more recent incidents might not rise to the level of creating a hostile environment, but that they did not need to, because the claim needed to be evaluated in its totality. The recent events “anchored” the claim and allowed the court to consider the more than 10 years of harassment that preceded them. Thus, the court held that the plaintiff had identified sufficient evidence from which a jury could find that he had weathered a “severe or pervasive” environment of sexual harassment. As the court explained, “because a hostile work environment develops over time, as objectionable behavior is repeated, it is unremarkable for some related episodes to fall outside the limitations period.”
The court clarified two other important aspects of sexual harassment law. First, it reaffirmed that a plaintiff need not point to any “explicit” sexual language to prove sexual harassment. Instead, sex-based motivation “may be inferred from implicit proposals of sexual activity.” In this case, the manager had never said anything explicit or sexual, but had implied as much by touching the plaintiff repeatedly without permission and pressuring him to spend time together one-on-one. And second, the court made clear, as it has before, that conduct that is either “severe” or “pervasive” violates the law. The District Court had erred in holding that a plaintiff needed to point to conduct that was both severe and pervasive to establish his claim. The district’s court clear error on the hostile work environment standard is one that the First Circuit has had to correct before in at least one prior decision, in the 2016 case Burns v. Johnson following the reasoning of an amicus brief the firm filed.
This decision is an important reaffirmation that harassment claims must be assessed holistically, and that years (or even decades) long patterns of harassment must be viewed as a continuous event, not parsed out into individually incidents. The Court also properly noted that conduct can be sexual without sex being explicitly discussed, bringing a common-sense understanding of interpersonal interactions into Title VII law. This decision ensures that employees who have experienced sexual harassment will be able to rely on the entire course of conduct that has created the hostile environment at their workplace to prove their discrimination claims.
If you have experienced sexual harassment at work, please contact our employment discrimination attorneys at (617) 742-6020.