The Third Circuit recently issued a precedential opinion in Mandel v. M&Q Packaging Corp., analyzing a number of sex discrimination issues. Of particular interest, the Court addressed the continuing violation theory of hostile work environment sex discrimination under Title VII.
The plaintiff allegedly suffered a parade of horribles over many years of employment. Just some of the highlights:
Mandel claimed that, throughout her employment [she was] referred to as “woman,” “darling,” “the woman,” “fluffy,” “missy,” “hon,” and “toots”; having her body, clothing, and physical appearance commented on; being told that she was “foolish not to use [her] assets”; being told by Systems Manager David Benetz, when she asked for directions to a meeting at corporate headquarters, that “[f]or you . . . the meeting will start at my house tonight and we will conclude our part of it tomorrow morning – maybe . . . we may need to postpone the meeting with everyone else a few hours to finish up . . .”; being told by Quality Manager Harold Brenneman that he fantasized about her while he was having sex with his wife; . . . [and] being told to clean the bathroom and make coffee.One more thing . . . and it turns out to be a very important thing:
On April 6, 2007, during a meeting regarding sample orders, Bachert became angry, repeatedly called Mandel a “bitch,” and screamed “shut the fuck up.”Why is this important? Well, the plaintiff faced a statute of limitations problem . . . as in, almost all of the allegations took place outside of the statutory period for bringing a Title VII claim. However, the Court reminds us of the "continuing violation" theory:
Under the continuing violation doctrine, discriminatory acts that are not individually actionable may be aggregated to make out a hostile work environment claim . . . . [P]laintiff must show that at least one act occurred within the filing period.Hmmm, and how does the continuing violation doctrine apply to this case?
Mandel has alleged at least one act that falls within the statute of limitations (i.e. Bachert calling her a “bitch” during a meeting), and many of the acts that occurred prior to the applicable limitations period involved similar conduct by the same individuals, suggesting a persistent, ongoing pattern. We will, therefore, remand the case to the District Court for further proceedings, including a determination of the scope of the incidents properly considered part of the continuing violation for the hostile work environment claim.And now you see why that one incident suddenly becomes very important. It effectively brings in the preceding offensive conduct that would otherwise have fallen outside of the statute of limitations. The Court directed the district court to analyze whether a hostile work environment existed by examining the "totality of the circumstances" instead of "pars[ing] out each event and view[ing] them separately." That last blow-up may wind up costing the employer dearly. At the very least, it has dragged this case out with a remand to the district court.
Molly DiBianca has a post on this case, analyzing whether the final name-calling could constitute constructive discharge: 3d Cir. Issues a Bitchin' Constructive Discharge Decision.