In National Railroad Passenger Corp. v. Morgan, the U.S. Supreme Court found that plaintiffs pursuing a hostile work environment claim could reach back and establish liability for actions that occurred well outside the 300 days allowed for discrete employment actions, such as a failure to promote or termination. In Pruitt, et al. v. City of Chicago, the Seventh Circuit (Judge Easterbrook wrote the opinion) applied Morgan to provide employers with at least some limitation on how far back an employee can reach for liability purposes in alleging a hostile work environment.
The plaintiffs in this case were black and Hispanic maintenance workers at O’Hare Airport who claimed that they had been subject to a hostile work environment for more than twenty years as a result of the actions of their foreman. The case was ultimately dismissed by the trial judge as time barred. The plaintiffs’ appealed, arguing first that the District Court should have certified a class of individuals as potential victims and second that the Court should have considered the entire twenty year history of their supervisor’s conduct to be actionable, although acts of discipline and promotion were not.
I enjoy Judge Easterbrook’s Seventh Circuit opinions almost as much as I enjoy reading his brother’s football commentary on ESPN. Both write with a clarity and to-the-point analysis that makes reading them a pleasure. With regard to the class action claim, Judge Easterbrook noted that because the case was disposed of on the merits, the issue becomes whether the plaintiffs want to take all other employees down in flames with them, or if plaintiffs just don’t care about the risk Either way, he wrote, the plaintiffs demonstrate inadequacy as representatives for others in the class. He also stated that there is no indication in record that joinder of employees interested in participating as class members would be impractical.
Then the Court shifts fire to the main issue, namely, what defense is available to a defendant when the plaintiff waits twenty years to file a claim but alleges a hostile work environment.
The Supreme Court in Morgan noted that treating a hostile work environment claim as a single, continuing prohibited employment practice had the potential of litigating old news. The Supremes allowed an employer to raise a laches defense, barring a plaintiff from maintaining the action if she unreasonably delays in filing suit and as a result harms the defendant.
Applying the law to the facts, Judge Easterbrook notes that the plaintiffs’ allege fairly serious misconduct by their supervisor dating back twenty years. Under the circumstances alleged, it should have been clear to the plaintiffs that they had a cause of action for race and national origin discrimination sometime in the 1980s.
Not only were the plaintiffs not diligent—the Court readily identified prejudice that resulted from the delay. Judge Easterbrook noted that the supervisor in question had retired and moved out of the Court’s jurisdiction, and also suffered a stroke, causing significant memory problems. The supervisor’s next in command retired, and ultimately died during the period. The Court also found that the vast majority of the records maintained by the employer relative to the events alleged had been destroyed as a result of the passage of time, not to mention the normal memory loss and inability to recall key events that could be expected among the witnesses that were available. Once this prejudice was established, the Court stated that the laches defense could be readily applied.
Judge Easterbrook wrote that the laches defense should probably be applied to cut off liability only for events that are too remote or where the employer can demonstrate clear prejudice as a result of the plaintiffs’ delay. The Court said that dismissing the entire suit because some of the alleged wrongs occurred too far in the past is not acceptable.
This is a great opinion and provides some very useful tools for employers defending hostile work environment claims. Employment lawyers should note that laches is an affirmative defense that needs to be pleaded early. Moreover, it is probably a good idea for the defendant to be prepared to advise the Court where a reasonable cut off of liability should occur. An employer may not be able to get rid of the entire claim because of a plaintiff’s lack of diligence, but it can cut off those parts of the claim against which it would be most difficult to defend.