Thursday, December 27, 2007

7th Circuit holds that hostile environment is not defined by statutory limitations period

The facts of Bright v. Hill's Pet Nutrition explain that Elizabeth Bright was subject to pervasive harassment because of her sex during the her employment for the pet food company:

Elizabeth Bright was hired at the Richmond plant during February 2000, ... and quit in November 2002.... Bright was assigned to a Processing Team, where she worked for about 10 months before being transferred to a Stretchwrap Team. Between October 2001 and November 2002, ... and Bright [was] assigned to a Stretchwrap Team. Bright filed her charge of discrimination early in 2003 and filed suit later that year.

Bright presented evidence that the men routinely vexed the women in an effort to make them quit. The tactics included unwelcome sexual overtures and sex-related chatter, streams of misogynistic invective, refusal to train (team leaders tried to get women to view pornographic images on the men's computers, and, when women declined, the men would declare that they had no time for training), assigning women to the dirtiest jobs (which team leaders called "women’s work"), and threats of violence, some of which were fulfilled (for example, Bright's dog was shot, supposedly as a warning to her). According to one of Bright's witnesses, on being told that men referred to female workers as "whores," "c**ts," and "bitches," Vanderpool replied: "a hostile work environment is a productive work environment." ...

Hill's Pet Nutrition contended that none of this testimony should be believed. It did, however, concede having, a problem with pornography in the workplace, and it suspended 11 men for two weeks in March 2002 in response to their accumulation and viewing of inappropriate materials on the firm's computers. The employer maintains that this step solved the only problem that women had encountered at work.

The trial judge instructed the jury that it could not consider anything that happened to Bright before March 29, 2002, 300 days before she filed her EEOC charge, and could not consider any of the incidents related to the pornographic images. With that instruction, the jury returned a verdict against Bright.

According to the 7th Circuit, the trial court's instruction to the jury about which evidence it could not consider was in error. The evidence that predated the statutory filing period was relevant to the totality of the hostile environment in which Bright worked:

[A] hostile working environment must be treated as one unlawful practice even if the employee moves from one team to another.... [A] hostile environment in a single posting is one practice. Bright was part of a Stretchwrap Team for 22 months, from the beginning of 2001 until she quit in November 2002, but the judge allowed the jury to consider only the events of the final eight months, from April through November.... [T]he judge should have allowed the jury to consider the working conditions that Bright encountered for her entire employment at the Richmond plant.... [I]t is inappropriate to draw lines by time.

Moreover, to the extent that the employer remedied some or all of the harassment, the proper evidentiary ruling would not be to exclude the pre-remedy harassment, but instead to permit the jury to consider such evidence as part of parcel of its decision as to the employer's liability (i.e., was the employer negligent in responding to complaints of harassment or remedying the harassment):

When an employer takes steps such as the suspensions and purge of objectionable material from the computers' hard drives, these acts matter not to the duration of the unlawful practice or the evidence a plaintiff may offer, but to the question whether the employer is responsible. "[A]n employer can be liable ... where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII".

Hill's Pet Nutrition may be able to show that its handling of the sexual images solved part of the problem and prevents attribution. Similarly it may be able to show that it neither knew nor should have known about some of the events that Bright encountered. If an employee unreasonably fails to take advantage of preventive or corrective opportunities, and the employer consequently does not know about the problem, then it cannot be held liable. The fact that an employer has raised these contentions, however, does not curtail the scope of the employee's proofs.... Unless the evidence is so lopsided that the employer is entitled to judgment as a matter of law, both the plaintiff and the employer must be allowed to present their full evidentiary cases at trial, and the district judge should instruct on all of these issues.

This case illustrates the important role that companies play in remedying and correcting harassment in the workplace, and how those efforts, or lack thereof, come into play in a sexual harassment trial. Employers will not be able to escape or minimize liability simply by relying upon Title VII's 300-day statute of limitations as a point in time by which to compare working conditions, and argue that because conditions were better during the 300 day period as compared to prior, the judge or jury should not consider the totality of the employee's work environment.