In my spare time (which has been limited during the pandemic, given the whirlwind of COVID-19-related legal developments), I like to peruse the Equal Employment Opportunity Commission’s quarterly Digest of Equal Employment Opportunity Law. (Nerd alert!) In addition to summaries of recent EEOC decisions and federal court opinions, each digest contains an article that provides some insight into the EEOC’s position on a particular topic. Now while the articles are targeted towards federal agencies, they offer private employers a roadmap as to the EEOC’s thinking. We’ve blogged about prior articles on religious discrimination, remedies for discrimination, comparing harassment prevention to crime prevention, and new types of race discrimination, among other things. A recent article caught my eye – “Claims of Harassment and the Problem of Fragmentation.” (Well, that’s a new phrase to me!)
So what is fragmentation? According to the EEOC, “[f]ragmentation is the breaking up of a complainant’s legal claim into separate factual allegations or incidents.” It occurs in the context of hostile work environment harassment claims, which are based on “the cumulative effect of individual acts over a period of time.” More specifically, the EEOC states that:
Fragmentation can result from a failure to distinguish between the claim a complainant is raising, that is the alleged unlawful employment practice or policy, and the evidence, or factual information the complainant is offering in support of his/her claim. When an [employer] identifies each piece of factual evidence as a separate and distinct claim, the [employer] fails to recognize the underlying issue of a pattern of ongoing discrimination or harassment.
The EEOC addresses the issue of fragmentation in the context of limitations periods. For example, in the federal public sector, government employees must bring their complaints of discrimination to an EEO Counselor within 45 days of the allegedly discriminatory event. Employees in the private sector have 300 days in which to file a charge of discrimination with the EEOC. But the EEOC cautions that complainants often raise factual incidents that occur outside the limitations period; however, employers should not ignore them. As long as any incident occurred within the limitations period, the complaint is timely. And an employer should consider, “at least as background, all relevant evidence offered in support of a timely raised claim, even if the incidents occurred outside of the  limitation period.”
Now, as many employers know, a defense to a hostile work environment claim is that the employer promptly investigated the complaint and prevented any further harassment. But doing an investigation may not be a defense if an employer looks at the complained-of incidents in a piecemeal, rather than holistic, fashion. The EEOC specifically observes that agencies (and employers) often dismiss “fragmented individual incidents raised in support of a claim of harassment and hostile work environment.” Perhaps it’s because the employer finds that the individual incident was too trivial or insufficiently severe, and the complainant didn’t suffer any harm to a term, condition or privilege of employment. Or perhaps the employer finds that the complaint was untimely. But, the EEOC cautions, this approach “fails to recognize the continuing pattern of alleged harassing conduct or the ongoing nature of such a claim.”
If an employer engages in fragmentation and finds no harassment, and the employee ends up before the EEOC, the EEOC warns employers that it will look at both the language of the complaint and supporting information. It states that it “will address fragmentation and harassment, even if a complainant did not clearly characterize the claim as a harassment/hostile work environment claim.” (Yikes!)
The EEOC offered a number of recent Commission decisions addressing fragmentation, from which we can draw some lessons. In a number of them. the employing agency failed to consider incidents that occurred outside the limitations period in connection with those that were within the period. In one case, the EEOC noted that the employer treated some incidents as claims of disparate treatment and others as part of the claim of harassment, but failed to view them all together as part of the overall hostile environment claim. In another case, the employer did not consider incidents that were reported after the initial complaint. In several other cases, the employer failed to identify a pattern of harassment because the incidents varied in type.
So, essentially, the EEOC cautions employers not to ignore the forest for the trees. It can be frustrating when an employee brings forward a litany of complaints that appear trivial and unrelated – but be warned that the EEOC may consider all of them together to find a hostile environment!