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Breaking from federal precedent in sexual harassment cases concerning hostile workplaces, the Supreme Judicial Court of Massachusetts held that the traditional six-month statute of limitations begins to run only when a plaintiff gains “knowledge of the hopelessness of her work environment.” The July 12 ruling makes clear that, in Massachusetts, the continuing violation doctrine is to be given a more expansive reading than in federal cases. The new test articulated by the court in Cuddyer v. The Stop & Shop Supermarket Co., No. 08326, while not rendering the six-month statute of limitations ineffectual, substantially changes the manner in which the limitations period is applied. By declining to adopt the federal standard, i.e., awareness of discrimination, and adopting a test “more favorable” to plaintiffs, the ruling written by Justice John M. Greaney focuses on “the plaintiff’s knowledge of the hopelessness of her work environment, and allows her to litigate alleged, otherwise time-barred, acts of sexual harassment unless her delay … was [objectively] unreasonable.” ESCALATING HARASSMENT Grace Cuddyer, who worked in a Stop & Shop commissary, claimed she was exposed to continuing and escalating sexual harassment since the beginning of her employment in 1973. She filed a claim with the Massachusetts Commission Against Discrimination (MCAD) and, after the commission found probable cause, filed suit in Superior Court. Judge Judith Fabricant allowed the defendant’s motion to dismiss, concluding that the plaintiff “was barred from asserting the [so-called continuing violation] doctrine because her testimony indicated that she was aware that she was the subject of unlawful discrimination while acts prior to the six-month cutoff were taking place.” The state anti-discrimination statute, G.L. c. 151B, governing claims for sexual harassment in the workplace, provides that prior to institution of suit, complaints must be filed with the MCAD within six months of the offending event or events. Massachusetts has long recognized an exception to the six-month limitation period, called the continuing violation doctrine. The doctrine permits “plaintiffs to seek damages, if the alleged events are part of an ongoing pattern of discrimination, and there is a discrete violation within the six-month limitations period to anchor the earlier claims.” In dismissing plaintiff’s action, Fabricant relied on federal law interpreting the continuing violation doctrine as applied to the federal analogue of the doctrine — Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. sec. 2000e-2(a)(1). As the SJC explained, Fabricant “concluded that, although the continuing violation doctrine ‘permit[s] the inclusion of acts whose character as discriminatory was not apparent at the time they occurred’ … it does not obviate the general rule that ‘a knowing plaintiff has an obligation to file promptly or lose his [or hers] claim.’” In other words, once a plaintiff knows she is being harassed, she has six months to file her claim. From “day one” Grace Cuddyer claims she was subjected to profane and degrading language, asked to perform sexual acts, and inappropriately touched. At one point, a co-worker crept up behind her and attached a sanitary pad spotted with raspberry syrup to her back. Another co-worker “stood behind the plaintiff with glue dripping from his gloves and jerked his hands back and forth to simulate masturbation.” Against this backdrop of indignities, the plaintiff repeatedly complained. Significantly, one co-worker was fired as a result of plaintiff’s complaints. (The fired co-worker was eventually reinstated by an arbitrator.) Because it was clear that the events complained of patently constituted harassment, and because the bulk of them occurred prior to the plaintiff’s legal action, Fabricant, using the federal standard, ruled that the plaintiff could not establish a hostile workplace. (The two events that were timely were deemed insufficient by the judge to prove harassment.) In Cuddyer’s case, the SJC felt that a jury could find that the “glue incident … accompanied by continuing hostility directed at her, triggered the plaintiff’s physical and emotional breakdown and furnished the catalyst for her full comprehension that a pattern of long-standing discrimination existed that was unlikely to be successfully remedied.” The SJC was careful to stress that, although the continuing violation doctrine may be used to revive otherwise time-barred events for the purpose of establishing a pattern of abuse or discrimination, a plaintiff may recover damages only for those events occurring within the six-month period of limitation. This, the SJC reasoned, ensures that the twin goals of the limitation — notice to the defendant of potential liability, and opportunity for the MCAD to investigate and conciliate — are preserved. Counsel for the parties could not be reached for comment. Leonard H. Kesten, of Boston’s Brody, Hardoon, Perkins & Kesten, represented the plaintiff with attorneys Deidre Brennan Regan and Steven C. Sharaf. Lisa J. Damon, of Seyfarth Shaw in Boston, with Kent D.B. Sinclair, represented the defendant. The following submitted briefs for amici curiae: Marisa A. Campagna and Deborah M. Silva, for the Massachusetts Chapter of the National Employment Lawyers Association; Simone Liebman, for the Massachusetts Commission Against Discrimination; and Loretta M. Smith, for the Associated Industries of Massachusetts.

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