Court Can Split Hostile Work Environment Claim into Episodes

• Author: Onika K. Williams
• Pages: 23-24

court rejec ted the First and Eleventh

Circuits’ broad er interpretations of the

CFA A.

The Ninth Circuit also considered

public policy implications. It agreed

with the district co urt that giving

companies like Li nkedIn “free rein” to

decide who can c ollect and use pub-

lic data could resu lt in “information

monopolies th at would disserve the

public interest .” “LinkedIn has no pro-

tected proper ty interest in the data

contributed by its use rs, as the users

retain ownershi p over their prof‌ile s,”

the court obse rved.

The Ninth Circuit rejected LinkedIn’s

assertion tha t the injunction threat-

ened its memb ers’ privacy, noting it

was doubtful LinkedIn members main-

tained an expec tation of privacy with

respect to inform ation they posted

publicly on the In ternet. Even if some

LinkedIn user s retained some privacy

interests in thei r public prof‌ile informa-

tion, those intere sts did not outweigh

the plainti’s interest in continuing its

business.

The Ninth Circuit c autioned that

its opinion was is sued at the prelimi-

nary injunc tion stage and it did not

“resolve the compa nies’ legal dispute

def‌initely,” nor did it “ad dress all the

claims and defe nses they have pleaded

in the district co urt.”

Section of Litigati on leaders note

the competing pu blic interests. “On

the one hand, we wa nt to reward

companies like Li nkedIn that built a

completely new pla tform, but on the

other hand, Li nkedIn may not have

used the data to its f ull value, and

hiQ brought som ething new to the

table,” asserts Marcus R. Chatterton,

Birmingham , AL, cochair of the Social

Media Subcom mittee of the Section’s

Intellectual Pro perty Litigation

Committee. “ In the balancing of pub-

lic interests, th e ruling was clearly

favoring the open in novation interest,

encouraging i nnovation by making

public data available,” he explains.

The court ’s opinion will ae ct

handling of pub licly available data,

Section lead ers say. “We are going to

see new eort s to hold data close or at

least make sure cre ators are compen-

sated for releasi ng data,” Chatterton

comments. “ If more data is put behind

a privacy screen to m ake it harder to

scrape, it could change scrapers’ busi-

ness models ,” he adds.

The court ’s ruling has conse -

quences for the p ublic as well. “Under

this ruling, arguably anyone scrap-

ing personal information from public

facing sites has th e unfettered right

to use that informatio n for any pur-

pose,” warns Rob ert W. Wilkins, West

Palm Beach, F L, cochair of the Data

Breach and Internet Subcommittee of

the Section’s Commercial & Business

Litigation Committee.

Court Can Split

Hostile Work

Environment Claim

into Episodes

By Onika K. Wil liams, Litigation N ews

Tea m Edit or

When a plainti ’s hostile work envi-

ronment claim comprises more than

one unlawful employment practice,

the claim can be di vided into sev-

eral distinct c laims, according to the

U.S. Cou rt of Appeals for the Seventh

Circuit. The app ellate court also con-

cluded that hos tile work environ-

ment claims are co gnizable under the

Americans wit h Disabilities Act (ADA).

The case is a remin der that employers

should seriously investigate allegations

of workplace hara ssment and take

prompt action when necessary.

The conf‌lict in Fo rd v. Marion

County Sheri ’s Oce began when

Brigid Ford, a de puty in the Marion

County Sheri’s Oce, seriously

injured her rig ht hand while on duty.

After assigni ng Ford to light duty, the

sheri’s oce told her that she either

had to transfer to a pe rmanent posi-

tion with a pay decrease o r be termi-

nated. Ford accepte d a civilian job as

a jail visitation cle rk. However, in the

following years, F ord alleged that she

suered disability-based harassment

by colleagues, r efusals to allow her to

work a f‌ixed schedul e rather than a

rotating schedule, and discriminatory

promotion denials.

Ford sued the sher i’s oce for

several discriminatory employment

practices in vio lation of the ADA, in

the U.S. Di strict Court for the Southe rn

District of Ind iana. In addition, Ford

advanced a hosti le work environment

claim after su ering alleged harass-

ment from two colle agues and subse-

quent allege d harassment by a third

colleague.

The district cou rt split Ford’s hos-

tile work environme nt claim into two

separate claims b ased on the identity

of the harasser s. The court granted

summary jud gment regarding the

third colleague . The court denied

summary jud gment regarding the f‌irst

two colleagues . However, a jury sub-

sequently rule d in favor of the sheri’s

oce.

The Seventh Circuit armed the

district cour t’s f‌indings. However,

the appellate cou rt did state that the

district cour t incorrectly divided the

hostile work environ ment claim by

the identities of the harassers rather

than the “inter vening action” of t he

sheri’s oce.

The appellate co urt held, for the

f‌irst time, that h ostile work environ-

ment claims are co gnizable under

the ADA. Citing a 20 02 U.S. Supreme

Court case , National Railroad

Passenger Corporation v. Morgan, the

Seventh Circuit explai ned that a hos-

tile work environme nt claim consists

of a series of separ ate acts that collec-

tively establish a n “unlawful employ-

ment practice.”

The Seventh Circuit st ated that

the following fac tors can be used to

determine when a n unlawful harass-

ment claim can b e analyzed as sepa-

rate claims: (1) a su bstantial passage

of time without the em ployer being

aware of the incident , (2) a change in

the employer’s supervisors, and (3) an

intervening remedial action taken by

the employer.

ABA Section of Liti gation leaders

agree that Ford dea ls with an issue

that practitioners have long wrestled

with: when can a hos tile work environ-

ment claim be divi ded into discrete

acts? “Here , the Seventh Circuit did an

admirable job o f canvassing objective

factors cour ts should consider (length

of time between ac ts, dierent manag-

ers, interven ing discipline) and ignore

(identity of disc rete harassers) to

parse the fact s of this specif‌ic claim,”

opines David E. G evertz, Atlanta, GA,

cochair of the Sec tion of Litigation’s

Employment & Lab or Relations Law

Committee.

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