The 24-hour news cycle has been dominated by coverage of sexual harassment allegations against celebrities, politicians and corporate executives in the wake of the salacious accusations levied against Hollywood mogul Harvey Weinstein. Employers across the country can be certain their employees are glued to real-time news feeds and evaluating their own previous experiences in and around the workplace with an entirely new perspective. A new bright light is shining on the issue of workplace harassment and society finds itself in the midst of a social movement aimed to encourage individuals to come forward and report (particularly on social media platforms) their personal accounts of experiences relating to sexual harassment. Many of these allegations go back decades, which has lawyers and non-lawyers alike asking what the legal implications are for allegations that go well beyond any applicable statute of limitations. Not all “stale” claims are necessarily time barred, and thus employers must recognize their obligations to investigate and ameliorate even older claims of harassment.
The “#metoo” movement, as it is referred to on twitter, has brought sexual harassment to the forefront and left employers wondering whether the visibility of sexual harassment in news coverage requires a reassessment of their handling of sexual harassment complaints in the workplace. The answer is “yes.” Many observations will be made in the coming months about the post-Weinstein workplace environment, but this article focuses on the fact that while social media allegations are not subject to the statute of limitations applicable to workplace harassment claims, complaints of a historical nature require the same level of investigation as complaints made contemporaneous to the alleged conduct.
From accusations that senate candidates committed acts of sexual misconduct during the 1970s to tales of sexual assaults by Hollywood stars in the 1980s, it is evident that the post-Weinstein allegations are relevant, notwithstanding the fact that they may be decades old. Indeed, the untimeliness of these accusations have not effected their validity, as the allegations have often times drawn out immediate apologies from the accused and empowered individuals outside of the celebrity universe to seek redress for historical offenses. Although Title VII requires a harassment charge to be filed with the EEOC within 300 days “after the alleged unlawful employment practice occurred,” and Michigan law requires a claim to be filed within three years of the conduct, the wave of recent social media allegations seems to have no temporal limitation.
If there is an increase in harassment complaints in the workplace, it may very well occur because employees are raising complaints of older conduct that is barred by the statute of limitations. Sexual harassment generally involves continuing harassment over a period of time, but typically only evidence of sexually harassing incidents within the relevant statute-of-limitations period is admissible. However, harassing acts that would otherwise be time-barred under Title VII’s limitations period can be actionable if “they are... part of the same actionable hostile work environment practice” as non-time-barred harassing acts. Morgan, 536 U.S. at 120. Thus, evidence of older acts could still be admissible. The key inquiry is whether the “incidents of harassment occurring outside the statutory period are sufficiently related to those incidents occurring within the statutory period as to form one continuous hostile work environment.” Wheaton v. N. Oakland Med. Ctr., 130 F. App'x 773, 787 (6th Cir. 2005).
Furthermore, evidence of harassing conduct that is not actionable—even under the continuing-violation doctrine—may nonetheless be admissible as “background evidence,” Morgan, 536 U.S. at 113; see also Barrett, 556 F.3d at 519; Gibson v. Shelly Co., 314 F. App’x 760, 767-68 (6th Cir. 2008), if it is still relevant and otherwise satisfies evidentiary rules. In addition, evidence that sheds light on the motive of the defendant or the defendant’s employees would potentially be admissible as background evidence. Griffin v. Finkbeiner, 689 F.3d 584, 600 (6th Cir. 2012). Similarly, evidence about the employer’s prior response to sexual harassment might be admissible in support of the vicarious-liability element of the sexual-harassment claim or admissible to rebut an affirmative defense. See id.; Jackson v. Quanex Corp., 191 F.3d 647, 660-62, 668 (6th Cir. 1999).
The Sixth Circuit has used fairly broad language to describe the acceptable uses of background evidence, stating that “evidence of acts occurring before the limitations period [may be] relevant to determinations of whether the environment… was objectively or subjectively hostile.” Jackson, 191 F.3d at 668. Meaning, background evidence may be admitted to shed light on how the plaintiff—and how a reasonable person—would have interpreted and experienced the sexually-harassing conduct. McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 87 (2d Cir. 2010) (“[A] female plaintiff who has previously experienced an extremely hostile work environment is more likely to perceive subsequent discriminatory incidents—that, let us assume, take place in a different department within the company, under different managers, and after some gap in time—to create an environment that is hostile to women.”).
Therefore, even if sexual harassment accusations are time barred, which would encompass the majority of allegations being covered at this time by the media and might prompt employees to speak out about older incidents, employers should still investigate the allegations and make findings about the accused employee. Failure to do so imperils the workforce and exposes the employer to a risk of it later being discovered that harassment allegations were not adequately investigated.