What do you think when you hear that a employee filed a discrimination claim against a former employer? Do you assume it’s just a disgruntled employee looking for a payout? What if the employee alleged that s/he was subjected to 18 years of discrimination and harassment, had complained repeatedly and that the employer did nothing about it? You might give the employer the benefit of the doubt, but it should be decided by a jury, right? Then the employer says, “Wait a minute, aren’t these claims time-barred?” You then remember that there are time limits for filing discrimination claims, and they are much shorter than 18 years. Tough break for the employee, right? Maybe not, though. The passage of time does not always mean an employer can dodge a lawsuit. How does that work? That’s our topic for this week, complete with a real live case illustration.
The case is Garner v National Railway Corp, d/b/a Amtrak a U.S. District Court Case from the Northern District of Illinois. Here’s what went down:
Dawn Garner, an African-American woman, worked as a conductor for Amtrak from May, 1999 until June, 2017. During her 18-year tenure, she alleges she endured sexual and racial harassment, a hostile work environment and retaliation. There is simply not enough room to describe everything she alleges, but here is just some of it: a male conductor referred to her as “Buffalo Butt”, commented that her “butt was as big as a dining room table” and that “women aren’t built to work on a railroad”; an H.R. representative allegedly made sexually suggestive comments to her from 2000 – 2016, repeatedly commenting about her appearance, asking about her marital status, and asking her to turn around so he could look at her; she allegedly witnessed co-workers taking bets on who would be the first to have sexual relations with another co-worker; co-workers allegedly referred to her and other African-American employees using a highly offensive racist term; a co-worker stated in front of her that he was going to Tennessee to attend a Ku Klux Klan rally. You get the idea, right?
Ms. Garner further alleges that she complained to 14 different people in the chain of command at Amtrak and that the behavior continued. Ms. Garner apparently had enough in March, 2016 (and who wouldn’t after almost 17 years) and filed a formal complaint with Amtrak’s Equal Employment Opportunity Compliance Office. She was led to believe that Amtrak’s EEO Compliance Office was the same as the EEOC and was not told about her right or need to contact the EEOC to file a charge. In March or April of 2016 she was then subject to a formal investigation for allegedly delaying a train to assist a disabled passenger. Ms. Garner alleges that the investigation was in retaliation for at least 3 complaints of sexual harassment and racial discrimination by her. Between March 2016 and her termination in June 2017 she received several other write-ups and counseling sessions. Prior to her formal complaint in March 2016 Ms. Garner had never received a write-up. Ms. Garner filed suit, alleging sexual harassment, racial discrimination, hostile work environment and retaliation.
Predictably, Amtrak moved to dimiss Ms. Garner’s claims. Amtrak argued that Ms. Garner’s filing was way past the statute of limitations for filing such claims. At first blush, Amtrak would appear to have a valid defense. To file a claim under Title VII, one must first file a charge with the EEOC. The time limit for doing so is either 180 days after the facts giving rise to the claim occurred (i.e. the discrimination/harassment/retaliation) or 300 days if a state or local agency enforces a law prohibiting discrimination on the same basis (which was the case here). There’s more here than meets the eye, however, so let’s have a second look, shall we?
Most rules have exceptions, and this one is no exception. (See what I did there?) The exception here is known as the Continuing Violation Doctrine, which “allow[s] a court to consider acts that occurred outside of the limitations period if ‘related closely enough’ to the acts occurring within the established time frame ‘to be considered one ongoing violation.’” (See Nagle v. Village of Calumet Park, 554 F.3d 1106, 1121 n. 4 (7th Cir. 2009) (quoting Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 396 (7th Cir. 1999)) . This label is really a misnomer though, because it’s really more about cumulative than continuing violation, but perhaps I digress. Let’s get back to this case.
For facts and claims relating to hostile work environment, the court found a continuing violation and so all of her claims based on hostile work environment got the green light from the court. So all of the comments, unwanted touching and other behaviors related to sexual harassment and discrimination and racial discrimination that continued (and had cumulative effects) fell within this exception. (The specific acts of retaliation, however, did not and the court found them to be time-barred.) Amtrak raised a few other, more technical defenses I will not bore you with here, though if you are interested, here is the court’s ruling.
So, what’s the key takeaway? Even a statute of limitations (time-limit for filing claims) may not protect you from claims of ongoing harassment and discrimination. If you receive complaints and don’t address them they will, in all likelihood come back to bite you. So once again:1. Take all complaints seriously; 2. Conduct prompt and thorough investigations; 3. Take prompt and appropriate remedial action; 4. Provide periodic training; 5. Monitor compliance: and, one of my favorites: 6. Talk — and listen– to your employees to learn about brewing issues and fend off bigger ones.
I’d say we’ve covered enough for now, so I’ll end here, until next time…
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