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Harassing Act Directed at Another Employee Enough to Revive Plaintiff's Time Barred Harassment Claims

    Client Alerts
  • May 01, 2015
Under Title VII, employees typically must file a charge of discrimination within 180 days (or 300 days in states such as South Carolina with their own EEO enforcement agencies) of the alleged discriminatory act. In its 2002 Morgan decision, the U.S. Supreme Court created an exception to this rule for sexual and other harassment claims. If the last harassing act falls within the limitations period, the employee’s claim can include all prior harassment, as long as it is part of the same pattern of hostile behavior.

Last month in a 2-1 decision, the Ninth Circuit Court of Appeals extended this reasoning to include a situation where the only non-time barred harassing incident was directed at an employee other than the plaintiff. In Maliniak v. City of Tucson, the plaintiff was a female firefighter who alleged that she had been harassed by male co-workers who posted denigrating signs after she complained about their use of the women’s restroom. The plaintiff filed her EEOC charge well after the maximum filing period for these bathroom incidents. In her charge, the plaintiff alleged one other recent incident where a male firefighter had posted a sign on a vehicle that made fun of women’s driving skills. During discovery, this sign was determined to have been directed at another female firefighter. The city contended that this incident was not sufficiently related to the bathroom signs to allow it to revive the plaintiff’s time-barred claims.

The Ninth Circuit disagreed, reinstating a jury verdict for the plaintiff. The majority decision stated that the incidents were all part of the same actionable hostile work environment. They all involved written signs denigrating women, and were all permitted to remain posted by the same supervisors. The dissenting judge concluded that the incidents were not sufficiently related, and in any case, the signs themselves were not legally sufficient to create an actionable hostile work environment.

If adopted by other federal appellate courts, this reasoning could significantly broaden time periods for filing harassment claims. Conceivably, almost any harassing action in the workplace could be indirectly linked to earlier incidents involving persons in the same protected category. If followed to its logical conclusion, all potential plaintiffs’ claims would be revived each time a subsequent harassing incident involving other employees takes place.