The Seventh Circuit has a moderately employer-friendly
treatment of hostile work environment cases. It has held that
although the concept of sexual harassment is "designed to protect
working women from the kind of male attentions that can make the
workplace hellish for women . . ., it is not designed to purge
the workplace of vulgarity." Baskerville v. Culligan Int'l,
50 F.3d 428, 430 (7th Cir. 1995). The behavior must be "`extreme.'
It is not enough . . . to treat a female employee with[out]
sensitivity, tact, [or] delicacy, [to use] coarse language, or
[be] a boor. Such failures are too commonplace in today's
America, regardless of the sex of the employee, to be classified
as discriminatory." Minor, 174 F.3d at 858.
But Fendrick crossed the line. Unlike the defendant in Minor,
he did "quiz her about her personal life" and "engage her in
conversations about sex or love." Id. at 858. Moreover,
Fendrick's crude pickup attempt, coupled with a threat to fire
her unless she put out ("play the game or you'll be gone"), was
extreme. It colors the earlier "all man" remark and infects the
later behavior, rendering that behavior extreme taken in light of
the quid pro quo harassment. Even if the rest of Fendrick's
conduct did not by itself descend to the level required to
maintain a hostile work environment claim, it does not stand by
itself. It cannot be considered mere vulgarity or boorishness for
a woman to be subjected to a constant stream of sexual remarks,
including some with distinctly menacing overtones ("to women, to
Hitler, to tits . . ."), by a superior who has not merely
propositioned her but has warned her that she will be fired if
she does not "learn to play the game." That is "the kind of male
attention that can make the workplace hellish for women."
Baskerville, 50 F.3d at 430.
This quid pro quo harassment distinguishes this case from the
cases cited by Empress where the Seventh Circuit affirmed grants
of summary judgment for the defendant despite unwanted touching
and kisses. Those cases did not involve extortion of sexual
favors with threats of adverse employment action. Coupled with
the quid pro quo harassment, the other conduct is severe enough
to be hostile environment harassment. Obviously quid pro quo
harassment is neither necessary nor sufficient for a hostile work
environment claim. But, in the appropriate circumstances, it may
help make other conduct severe enough to constitute a hostile
The Seventh Circuit has also held that "isolated and innocuous
incidents do not support a finding of sexual harassment."
DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996).
Empress argues that Robert's case rests on only four incidents,
but in the first place, this is not true, given Robert's
allegations about weekly sexual comments at the focus meetings
over the course of a year. The conduct "persisted for a lengthy
period of time and that, during that period, was a pervasive
aspect of the plaintiff's employment." Doe v. R.R. Donnelley &
Sons Co., 42 F.3d 439, 445 (7th Cir. 1994). Second, "there is no
`magic number' of incidents that give rise to a cause of action.
. . . [T]he matter is simply not susceptible to a mathematically
precise test." Id.
Empress asks leave to amend its answer to assert an affirmative
defense of statute of limitations to Robert's sexual harassment
claim on the grounds that some of these claims occurred more than
400 days before the filing of her EEOC claim on December 1, 1998.
Normally leave to amend is to be freely given when justice so
requires, Fed.R.Civ.P. 15, but there is no point in allowing the
amendment when the affirmative defense would be denied in any
event. Here Robert asserted a continuing violation theory. On
this, conduct that falls outside the limitations period is
actionable if linked with related acts that fall within it, and
the acts are then treated as one continuous act ending within the
limitations period. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.
1992). The continuing violation doctrine is
applicable only if the conduct can be recognized as actionable in
the light of later events that occurred within the limitations
period. Filipovic v. K & R Express Systems, Inc., 176 F.3d 390,
396 (7th Cir. 1999). It is applicable here.
Fendrick's conduct, including the threat to fire her unless she
"played the game," was not actionable under a quid pro quo theory
until Robert suffered adverse employment action, that is, until
she was fired. Taken by itself, it was not actionable under a
hostile work environment theory at all; for that, it had to be
part of a pattern of events, some of which (the sexual comments
at meetings) occurred within the limitations period. Sexual
harassment that is "serious enough to constitute unlawful
discrimination on grounds of sex is often a cumulative process
rather than a one-time event." Galloway v. GM Serv. Parts
Operations, 78 F.3d 1164, 1166 (7th Cir. 1996).
Moreover, even if the facts underlying the quid pro quo case
did not itself constitute a continuing quid pro quo violation,
"claims that raise a genuine issue of material fact as to the
existence of a hostile environment involve allegations of
continuing violations." Draper v. Coeur Rochester, Inc.,
147 F.3d 1104, 1108 (9th Cir. 1998) (citing Meritor, 477 U.S. at
66-67, 106 S.Ct. 2399). Roberts' hostile work environment claim
would bring in the facts outside the limitations period in any
event. That would be sufficient basis to deny the motion to amend
because, as the Supreme Court has explained, "[t]he terms quid
pro quo and hostile work environment are helpful . . . in making
a rough demarcation between cases in which threats are carried
out and those where they are not or are absent altogether, but
beyond this are of limited utility." Burlington Indus. v.
Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2264, 141 L.Ed.2d 633
(1998). Once in on either theory, the relevant facts are in. The
motion is therefore moot. There would be no point in allowing the
Empress replies that in theory the jury might believe Robert
about the events before the limitations period, including the
pass and the threat, but not those after, including the sexual
comments at meetings, and then Empress would have lost the
defense because it would not have been pled. However, I have
allowed the continuing defense theory, and since the firing was
within the limitations period, it does not matter that some of
the conduct Robert alleges falls outside it.
I DENY Empress's motion for summary judgment on Robert's
hostile work environment sex harassment claim. Empress's motion
in limine to exclude evidence of sex discrimination in 1996 not
alleged in EEOC charge or complaint is GRANTED. Its motion in
limine to exclude incidents of sex harassment that happened more
than 300 days before filing date is DENIED. Empress's motion in
limine to exclude evidence of a racist remark is GRANTED.
Empress's motion for leave to amend its answer to assert a
statute of limitations defense as to the sexual harassment claim
is DENIED as moot, as is its motion to strike portions of
Robert's response and 12(n).