How to Count HWEs


Former employees raise long lists of bad acts, going back years, to support claims for hostile work environment (“HWE”). How far back may an employee go for stories to support a HWE claim? All the way back. But only if the bad acts fit together into one actionable HWE. The Eighth Circuit recently cut a plaintiff’s story by three-fifths because the acts alleged were too different to form one HWE. Clay v. Credit Bureau Enters., Inc., No. 12-3207 (8th Cir. June 6, 2014). For this Section 1981 claim, the court was willing to consider as timely 12 alleged acts by co-workers, two supervisors, a manager, and a human resources vice president, spread over 4 years. The timely 12 alleged acts include improper discipline, unequal dress code enforcement, failure to praise, and distrustful comments. Despite the range of the timely allegations, the court refused to consider at least 18 acts alleged to have happened more than 4 years earlier. The 18 earlier allegations were more severe than the timely 12 – racial epithets, explicit instructions for disparate treatment, and statements of racial stereotypes – but the 18 involved 7 supervisors who were not named in the later 12 allegations and the only similarity was that the set of 18 and the set of 12 each included a dress code violation. Because the acts alleged to have happened before and after the 4-year mark were unrelated, the court cut the HWE off at 4 years. With only the puny dozen left, the court ruled the allegations were not severe or pervasive enough to amount to even one HWE.

Passing time closes old cases, at least when the allegations differ.


Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Sherman & Howard L.L.C. | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.