Courts Can Split Hostile Work Environment Claim into Episodes

When a plaintiff’s hostile work environment claim is comprised of more than one unlawful employment practice, the claim can be divided into several distinct claims.

According to the U.S. Court of Appeals for the Seventh Circuit, courts can analyze several factors, such as a significant gap between alleged incidents of discrimination, to decide whether a hostile work environment claim should be split into multiple claims. The appellate court also concluded that hostile work environment claims are cognizable under the Americans with Disabilities Act (ADA). The case is a reminder that employers should seriously investigate allegations of workplace harassment and take prompt action when necessary.

Employee’s Workplace Injury Leads to Discrimination Claims

The conflict in Ford v. Marion County Sheriff’s Office began when Brigid Ford, a deputy in the Marion County Sheriff’s Office, seriously injured her right hand in a car accident while on duty. Despite treatment, Ford did not regain full use of her hand. After assigning Ford to light duty for approximately one year, the sheriff’s office told her that she either had to transfer to a permanent position with a pay decrease or be terminated. Eventually, Ford accepted a civilian job as a jail visitation clerk. However, in the following years, Ford alleged that she suffered disability-based harassment by colleagues, refusals to allow her to work a fixed schedule rather than on a rotating schedule, and discriminatory promotion denials.

Ford sued the sheriff’s office for several discriminatory employment practices in violation of the ADA, 42 U.S.C. §§ 12101 et seq., in the U.S. District Court for the Southern District of Indiana. In addition to the schedule and promotion denial allegations, Ford advanced a hostile work environment claim after suffering alleged harassment from two colleagues and subsequent alleged harassment by a third colleague. The sheriff’s office ultimately decided to transfer the first two colleagues out of the visitation office.

The district court split Ford’s hostile work environment claim into two separate claims based on the identity of the harassers. The court granted summary judgment regarding the third colleague, finding that no reasonable jury could impose liability on the sheriff’s office, primarily because Ford did not alert supervisors that her issues with the third colleague stemmed from the colleague’s hostility toward her disability. The court denied summary judgment regarding the first two colleagues based upon Ford’s allegations. However, a jury subsequently ruled in favor of the sheriff’s office.

Court Uses Factors to Sever Claims, Not Hard and Fast Rule

Ford appealed to the Seventh Circuit. The appellate court affirmed the district court’s findings, ruling that the trial court correctly granted summary judgment on several issues, including those related to the hostile work environment claim, and committed no reversible error at trial. However, the appellate court did state that the district court incorrectly divided the hostile work environment claim by the identities of the harassers rather than the “intervening action” of the sheriff’s office.

In detailing its affirmance, the appellate court held as a threshold matter, for the first time, that hostile work environment claims are cognizable under the ADA. The appellate court then discussed whether a plaintiff’s hostile work environment could consist of more than one “unlawful employment practice” and established a new standard to determine when a hostile work environment claim can be split. Citing a 2002 U.S. Supreme Court case, National Railroad Passenger Corporation v. Morgan, the Seventh Circuit explained that a hostile work environment claim consists of a series of separate acts that collectively establish an “unlawful employment practice.”

Relying on Morgan, the Seventh Circuit stated that the following factors can be used to determine when an unlawful harassment claim can be analyzed as separate claims: (1) a substantial passage of time without the employer being aware of the incident, (2) a change in the employer’s supervisors, and (3) an intervening remedial action taken by the employer. A manager that Ford would complain to about her colleagues’ behavior was replaced by a different manager.

Impact of Ford on Hostile Work Environment Claims

ABA Section of Litigation leaders agree that the Ford case is important because it deals with an issue that practitioners have long wrestled with: when can a hostile work environment claim be divided into discrete acts? “Here, the Seventh Circuit did an admirable job of canvassing objective factors courts should consider (length of time between acts, different managers, intervening discipline) and ignore (identity of discrete harassers) to parse the facts of this specific claim,” says David E. Gevertz, Atlanta, GA, cochair of the Section of Litigation’s Employment & Labor Relations Committee.

Some Section leaders believe the court’s use of objective factors in its evaluation of severing claims could result in an increase in plaintiffs bringing hostile work environment claims. “There is no doubt that this ruling makes it easier for plaintiffs to advance claims of hostile work environment, which are traditionally very difficult claims to prove,” predicts Janea J. Hawkins, Reston, VA, newsletter editor for the Employment & Labor Relations Committee. As such, employers should take appropriate action when evaluating discrimination claims. “It would be in employers’ best interests to give heightened attention to workplace harassment complaints, investigate complaints promptly and thoroughly, and take prompt action under the company’s anti-harassment policy when warranted,” advises Hawkins.