After being subjected to threats of violence and verbal abuse, a Home Depot employee who described herself as “intersexed” or a “partial hermaphrodite” proffered sufficient evidence to defeat the home improvement store’s summary judgment motion on her hostile work environment sexual harassment claim (Hughes v The Home Depot, Inc, April 11, 2011, Irenas, J). However, the employee failed to establish a casual link between her complaints of harassment and her termination and, therefore, her retaliation claim did not survive summary judgment.

Alleging that she was born with male sex organs and also a large amount of female hormones, the employee lived as a male until she was 14 years old, when she changed her name. She was hired by Home Depot and soon began hearing “whispers and rumors” around the store that she was a man and that male customers were making threats toward her. The employee complained to a human resources manager, who investigated and prepared a report indicating that the store manager was not cooperative, that despite her direction, he was not taking the HR manager’s advice seriously—a particular concern because other employees would emulate the store manager’s actions.

Soon other employees began to complain about the employee’s treatment, and his locker was adorned with the word “faggot.” During a meeting, a coworker allegedly said that if the employee came near him, he “would respond with violence.” The employee’s car was tagged in soap with the phrase “we don’t need your kind here, go home.” The HR manager recommended that the perpetrators be disciplined and the employee transferred, but her recommendations were not adopted. When the store manager departed, the employee told her new manager about the harassment. After another incident at the store, the employee again complained to human resources, but an HR manager suggested that the employee may have brought the problems on herself by telling people her “business.” When the employee was terminated, allegedly for violating Home Depot’s attendance policies, she brought suit under New Jersey’s Law Against Discrimination, alleging harassment and retaliation.

Contrary to Home Depot’s assertions, the employee’s claim for harassment was not barred by the two-year statute of limitations under New Jersey’s LAD, the district court found as an initial matter. While certain instances of harassment indeed occurred outside the limitations period, “the statute of limitations does not begin to run until the wrongful action ceases,” the court wrote, citing to a New Jersey Supreme Court decision, Roa v Roa. Here, there was a dispute of material fact as to whether the employee had been subject to continuing harassment. The facts alleged by the employee supported a reasonable inference that the employee suffered a pattern of harassment that continued into the relevant limitations period. Therefore, her case was not time-barred.

The court next opined that the employee raised factual questions on numerous issues sufficient to withstand summary judgment on her hostile work environment claim. For example, she presented evidence that supported her claims that she was harassed because of her gender; that the harassment was severe and pervasive, and that a reasonable woman could believe that the harassment altered the terms and conditions of employment. Having done so, the employee defeated Home Depot’s motion for summary judgment on her sexual harassment hostile work environment claim.

However, the employee failed to establish a prima facie case of retaliatory discharge. Specifically, she was unable to demonstrate that there was a causal link between her complaints of harassment and her ultimate termination. Therefore, Home Depot prevailed on its motion for summary judgment on the employee’s retaliation claim.