A Washington employee sued her employer for hostile workplace discrimination, claiming she had been sexually harassed from 1989 until 2002. Her employer argued that a several-year break in harassment during that period thwarted her claim.

What happened. "Barry" began working for the Washington Department of Social and Health Services (DSHS) at Western State Hospital (WSH) in 1988. During the 1990s and early 2000s, Barry held several positions at WSH, including mental health technician, forensic therapist, administrator, and risk manager.

"Jackie" also began working for WSH as a mental health technician in 1988. She initially found Barry likable and friendly, but reported in her testimony that he soon began to "take advantage" of her. She claimed that starting in 1989 he began kissing her, standing close to her, and making other advances. On one occasion she alleged that he threatened to kill her, putting an unloaded gun to her head and pulling the trigger. Jackie claimed that she felt powerless and feared that if she rebuffed Barry, she would lose her job.

Jackie said that around 1994 she deliberately gained a large amount of weight and started dressing badly in a successful attempt to stop Barry's advances. For the next 8 years, she deliberately avoided Barry, often at inconvenience to herself. Jackie lost the weight in 2002 and said that Barry began harassing her again, coercing her into a hotel room (while traveling for work) or into his office where he performed unwanted sexual acts such as sucking on her breasts.

In 2001, another female WSH employee sued Barry, the state of Washington, and several other defendants, claiming that she had been the victim of sexual harassment, retaliation, and negligent supervision. During the trial in 2003 the parties settled, and WSH placed Barry on administrative leave. WSH conducted a workplace investigation that turned up 15 employees, including Jackie, who claimed that Barry had sexually harassed them and retaliated when they complained or resisted. WSH fired Barry, citing his misconduct toward female staff from the early 1990s through 2003.

Jackie waited until 2005 to bring several causes of action against Barry, WSH, and DSHS, including hostile workplace discrimination. Barry and the other defendants asked the court to dismiss the case, claiming that she had brought the claims too late. The trial court dismissed Jackie's case, finding that it was barred by the statute of limitations. Jackie appealed.

What the court said. Washington's Law Against Discrimination (WLAD) (WA Rev. Code Sec. 49.60) prohibits employment discrimination based on sex. Jackie's lawsuit claimed that she had suffered a hostile work environment for which her employer was responsible. WLAD does not set a statute of limitations period, but the general state statute of limitations requires plaintiffs to bring discrimination claims within 3 years of the wrongful act or give up their claims.

Jackie argued that the hostile work environment she claimed was the net result of years of separate acts from 1989 until Barry was fired in 2003. WSH argued that the hostile work environment lasted only from 1989 until 1994. The harassment did not resume until 2002, and was not then sufficient to create a hostile environment, WSH claimed. The trial court agreed, and found that Jackie would have had to bring her hostile environment claim by 1997.

The Court of Appeals disagreed. Barry's misconduct from 1989 to 1994 was sufficient for Jackie to decide to make herself unattractive by gaining weight and dressing badly. The 8-year "hiatus" was arguably no break from harassment, because Barry's presence caused Jackie to restrict her movements and opportunities in order to avoid him. Barry's acts could have created a continuous hostile environment from 1989 until 2002; a jury would have to decide whether they did. The Court of Appeals sent the case back for trial. Doe v. State, Court of Appeals of Washington, No. 35130-7-II (2008).

Point to remember: It may be the case that a hostile environment need not contain literal sexual harassment the whole time. Here the court found that a plaintiff might be able to claim a hostile environment even when the harassment temporarily stopped.