4.29.2011

The Power of Discretion: EEOC Wins Equitable Tolling Argument in Late-Filed Sexual Harassment Lawsuit

The U.S. Equal Employment Opportunity Commission (EEOC) settled a sexual harassment lawsuit this week after a federal court allowed the matter to proceed even though the EEOC charges were filed 62 days beyond the statute of limitations. (EEOC v. Willamette Tree Wholesale Inc., D. Or., No. 09-690, consent decree approved 4/21/11).

Two sisters alleged that their supervisor repeatedly raped one of the sisters and subjected the other to groping, propositions and graphic sexual comments. The EEOC brought suit under Title VII of the 1964 Civil Rights Act, alleging the women, who were immigrants, were subjected to a hostile work environment due to sexual harassment by a supervisor, and that they (and two family members who were also employees) were fired as a result of retaliation for complaining about the abuse. The EEOC also alleged the company failed to investigate or respond to the reports of harassment.

The employer argued that the claims were barred because the EEOC charge was filed 362 days after the last alleged discriminatory act, which falls 62 days beyond Oregon’s statute of limitations.

However, the judge was swayed by the EEOC’s argument for equitable tolling due to the severe psychological damage caused by the alleged repeated rapes. The judge also took into consideration that the plaintiffs were illiterate Spanish speakers who were repeatedly threatened against disclosing the assaults.

In considering whether the brother who worked for the same employer could bring his third-party claim for retaliation based on his firing, the court noted that even had the sibling not directly engaged in protected activity himself, he was covered by Title VII's anti-retaliation rules as a result of his relationship to his sister who filed the EEOC charges.

While it is not common for a court to grant equitable tolling, it is certainly within the court’s discretion to do so. As part of the settlement, Willamette Tree Wholesale, Inc. has agreed to pay the four employees $150,000 and implement anti-discrimination policies and training for its managers and employees. The employer must also report to the EEOC on its compliance for the next five years.





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