Full opinion text
ORDER McDADE, District Judge. This is a civil pattern or practice action filed pursuant to §§ 706 and 707 of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq., by the Equal Employment Opportunity Commission (“EEOC”) against Mitsubishi Motor Manufacturing of America, Inc. (“Mitsubishi”), alleging that Mitsubishi is liable for hostile work environment sexual harassment, quid pro quo sexual harassment, gender discrimination, retaliation, and constructive discharge at its auto assembly plant located in Normal, Illinois. The Complaint requests the following relief: a permanent injunction enjoining Mitsubishi from continuing its prohibited activities; a mandatory injunction requiring Mitsubishi to adhere to certain equal employment policies; and compensatory damages for the victims including backpay, reinstatement, past and future pecuniary and nonpeeuniary losses; punitive damages; prejudgment interest; and costs. There are two motions currently before the Court: Mitsubishi’s Motion for Partial Summary Judgment (Doc. # 78-1); and the EEOC’s Motion for Leave to File an Amended Complaint (Doc. # 93-1). The Court’s discussion of these motions proceeds in two parts. Part I addresses the limited legal question presented by Mitsubishi’s motion for partial summary judgment. Part II addresses the procedural questions presented by Mitsubishi’s motion and the EEOC’s motion for leave to file an Amended Complaint, which seeks to cure the procedural deficiencies raised by Mitsubishi’s motion. DISCUSSION 1. The Legal Question The principal legal question presented by Mitsubishi, whether a pattern or practice action can be brought for sexual harassment claims, requires the Court to grapple with the essential principles that animate Title VII. This has not been an easy task, but it is one which the Court recognizes as a privilege. To the Court’s knowledge, this is the first time that this legal question has ever been raised. After careful consideration of the parties’ arguments and the relevant case law, this Court finds that a pattern or practice action for sexual harassment is authorized by Title VII and can be brought by the EEOC, both as a legal matter and in this ease. The EEOC seeks to hold Mitsubishi hable for a pattern or practice of hostile environment and quid pro quo sexual harassment. The pattern or practice theory is that Mitsubishi created and maintained a sexually hostile and abusive work environment at its Normal, Illinois, auto assembly facility because it tolerated, from the faculty’s inception, individual acts of sexual harassment by its employees by refusing to take notice of, investigate, and/or discipline the workers who sexually harassed other employees. As a consequence, the EEOC argues that Mitsubishi’s “standard operating procedure — its regular rather than unusual practice” — was to ignore most (if not all) of its female employees’ complaints that they were individually, or as a group, being subjected to a sexually hostile and abusive environment, in violation of Title VII, based upon: unwelcome sexual advances, demands for sexual favors, and other offensive verbal and physical conduct of a sexual nature. If such a “standard operating procedure” of unlawful tolerance within the company’s confines exists, it constitutes a “pattern and practice” of sexual harassment. Pattern or practice liability, rather than liability for individual conduct, is the primary focus of the EEOC’s ease. The EEOC argues, however, that the evidence which establishes a pattern or practice of sexual harassment by the company goes at least half the distance toward establishing the individual cases of sexual harassment brought by the class members, because it establishes the objective portion of their ease. According to the EEOC, the pattern or practice case for injunctive relief, therefore, can and should be tried together with the individual claims for relief that stem from this pattern or practice. Mitsubishi disagrees. In fact, Mitsubishi argues that proving a pattern or practice of sexual harassment simply cannot be done, because the gravamen of a sexual harassment claim, as it has been defined by the United States Supreme Court in Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) and Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), is that the allegedly offensive conduct was subjectively unwelcome. At first glance, this argument may appear to have some merit; but, in reality, the argument constitutes the proverbial “straw man.” Although.it is true that Mentor and Harris require individuals, in an individual case of sexual harassment, to prove that the conduct they experienced was subjectively unwelcome, this is not an individual case; it is a pattern or practice ease, and the rules of engagement in this context are different. The Meritor and Harris eases involved individual charges of sex discrimination alleging individual acts of sexual harassment. They were not and did not purport to be pattern or practice cases, and the holdings regarding the proofs necessary to .establish an individual case of sexual harassment must, accordingly, be modified. To scrap the entire pattern or practice case, as Mitsubishi wpuld have us do, would ignore the statutory base for bringing Title VII actions for sex discrimination. Sexual harassment is a form of sex discrimination. Therefore, Title VII authorizes a pattern or practice suit for sexual harassment. This Court has concluded that a pattern or practice case for sexual harassment can be brought and maintained by the EEOC on behalf of the public for injunctive relief under §§ 706 and 707 of Title VII, based solely on an objective showing of the employer’s un-lawfiil pattern or practice. A pattern or practice case seeks to eradicate systemic, company-wide discrimination and focuses on an objectively verifiable policy or practice of discrimination by a private employer against its employees. To establish an unlawful pattern or practice, there is no need for the individual, subjective showings required by Meritor and Harris and, thus, no need for an employer’s individual defenses. Once pattern or practice liability is established, individual relief is possible for the victims of an unlawful pattern or practice if these individuals' can satisfy the subjective showings required by Meritor and Harris. As part of the individual relief phase, this Court believes that the victims of an unlawful pattern or practice are entitled to a presumption in their favor. The rationale for these conclusions and the methods of proof for such a case follow. Our analysis is broken down, as the case will be, into the “pattern or practice” phase and the “individual relief’ phase. A, The Pattern or Practice Case— Phase I This Court does not need to make a great leap of faith to state the obvious: Title VII authorizes a pattern or practice action for sexual harassment. The statutory authority for the EEOC to bring a civil action on behalf of alleged victims of discrimination is found at § 706(f)(1) of Title VIL 42 U.S.C. § 2000e-5(f)(l). The EEOC also has the power to bring a pattern or practice suit under § 707(e) of that Title, subject to the administrative prerequisites of § 706, for systemic discrimination by private employers, against their employees. Id. § 2000e-6. Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, makes it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” Id. at § 2000e-2(a)(l). It is now well-established that “sex discrimination” includes claims for sexual harassment, both for quid pro quo harassment and for hostile environment harassment. Meritor, 477 U.S. at 64-66. Title VII, therefore, expressly authorizes the EEOC to bring a pattern or practice action for claims of sexual harassment. The question in this case, then, is not whether a pattern or practice action for sexual harassment can be brought' at all, but rather how such a pattern or practice case can be tried and proven, given the unique element of subjectivity found in a sexual harassment claim. Questions of proof are the questions that this Court has spent a considerable amount of time trying to satisfactorily resolve. These questions are not easy ones. The pattern or practice model established in Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), which works for every other form of prohibited discrimination under Title VII, breaks down for sexual harassment claims, as Mitsubishi suggests, because the two seminal cases defining the essence of a claim of sexual harassment — Meritor and Harris — require consideration of individual issues and defenses particular to an individual claimant. In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the United States Supreme Court first recognized that a “hostile or abusive work environment” may constitute sex discrimination under Title VII. Id. All U.S. at 66. In Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the Court found that a discriminatorily hostile or abusive environment exists “[wjhen the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ which is ‘sufficiently severe or pervasive to alter the cbnditions of the victim’s employment and create an abusive working environment.’ ” Id. 510 U.S. at 21 (quoting Meritor, 477 U.S. at 67). Determination of whether harassing conduct creates a hostile environment “sufficiently severe or pervasive [enough] to alter the conditions of the victim’s employment” requires the trier of fact to view the conduct in light of the record as a whole and the totality of the circumstances. Meritor, 477 U.S. at 69 (citing 29 C.F.R. § 1604.11(b)). In reviewing the record, the trier of fact must answer two main questions: (1) was the complainant, “because of her sex, subjected to such hostile, intimidating, or degrading behavior, verbal or nonverbal, as to affect adversely the conditions under which she worked[,]” and, if so, (2) was “the defendant’s response or lack thereof to its employees’ behavior ... negligent.” Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1009 (7th Cir.1994). The first question requires the trier of fact to determine the severity or pervasiveness of the particular conduct at issue by testing it against both an objective and a subjective component. In other words, the trier of fact must find both that an objectively reasonable person would find the environment hostile and that the victim, herself, subjectively perceived the environment as hostile. Harris, 510 U.S. at 21-22. The objective showing operates as a limitation on the subjective assertions of the claimant by requiring that the claimant’s individual perceptions fall within a range that the reasonable person can understand. However, the gravamen of any sexual harassment claim is that the claimant, herself, personally found the alleged sexual advances “unwelcome.” Meritor, All U.S. at 68. If “the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is not a Title VII violation.” Harris, 510 U.S. at 21-22. However, there is no requirement of tangible economic consequences or psychological injury. Id. In order to establish a subjective perception of abuse, the charging party must only testify that she found the alleged conduct to be hostile or abusive at the time it occurred because she did not solicit or incite it, and she regarded the conduct as undesirable or offensive. Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir.1982). Unless the respondent produces evidence to the contrary, the subjective prong of the analysis will be satisfied. Id. The second question, the employer’s negligence, is equally fact-specific. In general, an employer can be held negligent if it knows or should have known about the harassing conduct. Jansen v. Packaging Corp. of Am., and Ellerth v. Burlington Indus., 123 F.3d 490, 494-495 (7th Cir.1997) (“Jansen”) (per curiam) (stating that the “law of the circuit” in these cases is “negligence, not strict liability.”). In fact, “[a] plaintiff has no duty under the law to complain about discriminatory harassment, but the employer ... will not be hable if it had no reason to know about it. Nor does a plaintiff have a legal duty to cooperate with the employer’s investigation; but the reasonableness of the employer’s attempts to rectify harassment is measured against how much it knows or should have known.” Perry v. Chernin, 126 F.3d 1010, 1015 (7th Cir.1997). The negligence requirement incorporates the necessity of notice to the employer, since without notice there cannot be negligence. Id. at 1013 (imposing liability without notice would constitute strict liability to the employer, which was rejected in Jansen). See also Zimmerman v. Cook County Sheriff’s Dep’t, 96 F.3d 1017, 1019 (7th Cir.1996) (If “the only possible source of notice to the employer ... is the employee who is being harassed,” she must present evidence “that she gave the employer enough information to make a reasonable employer think there was some probability that she was being sexually harassed.”). An employer is said to be on notice when information about the harassment comes to the attention of someone who either has the power to do something about it or who has- — or can reasonably be believed to have — “a duty to pass on the information to someone within the company” who does. See Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir.1997). However (and this is an important “however”), “[i]f the harassment is pervasive [as it certainly must be in a pattern or practice case] it can be presumed, subject ... to rebuttal, to have come to the attention of someone authorized to do something about it.” Id. (emphasis added). “In either case,” says the Seventh Circuit, “the enterprise has a reasonable chance of being able to respond to the information, whether it is information that it is being’ sued or information that subordinate employees are committing criminal or tortious acts.” Id. These concerns are also present in quid pro quo cases of sexual harassment. Quid pro quo' sexual harassment describes situations in which submission to sexual demands is made a condition of tangible employment benefits. Henson v. City of Dundee, 682 F.2d 897, 911 (11th Cir.1982); Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 461 (7th Cir.1990). “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.]” 29 C.F.R. § 1604.11(a) (1997). The proof required to establish quid pro quo sexual harassment is the same as that required for a hostile environment claim except that the employee, instead of showing that her work environment was pervaded by severe harassment, must show that “the employee’s submission to the unwelcome advances was an express or implied condition for receiving job benefits or that the employee’s refusal to submit to the supervisor’s sexual demands resulted in a tangible job detriment^]” Kauffman v. Allied Signal, Inc., 970 F.2d 178, 186 (6th Cir.1992). However, in the situation where the victim submitted to the request for sexual favors, she need-,not show any tangible economic harm to state a claim for quid pro quo harassment. Karibian v. Columbia Univ., 14 F.3d 773, 778-79 (2d Cir.1994). Thus, under either type of harassment, there is both an objective and a subjective component of the claim. To prevail, the plaintiff must establish: (1) that she personally was adversely affected by the conduct, and (2) that a reasonable person would also have been adversely affected. Rennie v. Dalton, 3 F.3d 1100, 1107 (7th Cir.1993).’ In addition, for the employer to be hable, the plaintiff must establish both that the employer had notice' of the harassment and was negligent in taking corrective action. See generally Jansen, 123 F.3d at 493-94; Perry, 126 F.3d at 1013. Although these two theories of liability involve different conduct, [v]ictims of quid pro quo harassment often suffer a hostile environment. Indeed, the quid pro quo concept, in its widest reach, could include any situation in which individuals must accept a gender-hostile environment in order to enjoy the tangible benefits of their jobs. Similarly, victims of hostile environments often suffer the tangible job detriments associated with quid pro quo harassment. A hostile environment may drive employees off the job, demoralize or upset them to the extent that they are fired for absenteeism or unsatisfactory work, or cause them to complain about the harassment and risk retaliatory discharge. See e.g., Barbara Lindemann & David D. Kadue, Sexual Harassment In Employment Law 8-9 (1992). Consequently, the proof offered to establish a hostile environment case may also serve to establish a quid pro quo case of sexual harassment. This Court believes that the overlap in proof is especially relevant in a pattern or practice ease, such as this one, which alleges both theories. The overlap in proof is relevant, in part, because the Meritor and Harris decisions — which require consideration of subjective elements — do not purport to address the method of proof in pattern or practice cases, as opposed to individual cases. Consequently, a pattern or practice case alleging either theory will follow the same format. In a pattern or practice case brought by the EEOC for injunctive relief, it is not really necessary or appropriate to consider the subjective issues of individuals. If a company engages in a pattern or practice which is proved by an objective test, and the company is negligent in preventing it, then the EEOC can and should be able to obtain injunctive relief, regardless of whether some of the individuals may have no subjective objection to the harassing conduct (i.e., the conduct may be welcome to some). The Meritor and Harris decisions do not address these issues, and this Court believes that the teachings of Meritor and Harris are not intended to apply lockstep in a case such as this one. The law, therefore, must be that at the pattern or practice phase, subjective proofs are not necessary and should not be considered to find a pattern or practice of sexual harassment. The framework for the pattern or practice case that this Court has conceived is divided into phases, like the Teamsters model. See 431 U.S. at 360-62. In an effort to organize the controlling principles of law, the Court has organized its discussion by providing both a method of proof and a rationale section for each phase. The Court’s conclusions of law are set forth below. 1. Method of Proof In Phase I, the pattern or practice phase, the EEOC will be permitted to establish a pattern or practice of sexual harassment by proving, by a preponderance of the evidence, that an objectively reasonable person would find the existence of: (1) a hostile environment of sexual harassment within the company (a hostile environment pattern or practice) or a situation where individuals within the workplace, as a whole, must accept a gender-hostile environment to enjoy the tangible benefits of their jobs (a quid pro quo pattern or practice); and (2) a company policy of .tolerating (and therefore condoning and/or fostering) a workforce permeated with severe and pervasive sexual harassment. Determining whether a hostile environment exists (for purposes of establishing hostile environment or quid pro quo harassment), in a pattern or practice case, must be done by the trier of fact in light of the totality of the circumstances. Under, the totality of the circumstances analysis the district court should not carve the environment into a series of discrete incidents and then measure the harm occurring in each episode. Instead, the trier of fact must keep in mind that “each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment [thereby] [sic] created may exceed the sum of the individual episodes.” See Jenson v. Eveleth Taconite Co., 824 F.Supp. 847, 885 (D.Minn.1993) (quoting Burns v. McGregor Electronic Indus., Inc., 955 F.2d 559, 564 (8th Cir.1992) and Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486, 1524 (M.D.Fla.1991)). See also Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir.1990) (“A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents but on the overall scenario.”). Accordingly, the landscape of the total work environment, rather than the subjective experiences of each individual claimant, is the focus for establishing a pattern or practice of unwelcome sexual harassment which is severe and pervasive. The existence of a company’s policy of tolerating sexual harassment is the basis for pattern or practice liability. Tolerance of sexual harassment permits rampant discrimination to take place. If, based on the sum of the individual testimony by the class, the trier of fact determines that an objectively reasonable person would have to spend the work day running a “gauntlet of sexual abuse in return for the privilege of being allowed to work and make a livingf,]” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir.1982)), then a finding that sexual harassment is occurring in the workplace is justified. The company’s pattern or practice of tolerating such harassment, however, will require an additional showing of the company’s notice and negligence. When harassing behavior occurs frequently enough and is both common and continuous, a company can reasonably be said to be on “notice” of a severe and pervasive problem of sexual harassment that constitutes a hostile environment. See Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir.1997) (“If the harassment is pervasive, it can be presumed, subject we imagine to rebuttal, to have come to the attention of someone authorized to do something about it.”); Jenson, 824 F.Supp. at 886 (when sexual harassment is “pervasive,” the pervasive nature of the problem “gives rise to an inference of knowledge or constructive knowledge.”); Robinson, 760 F.Supp. at 1531 (“an employer incurs liability when harassing behavior happens frequently enough that the employer can take steps to halt it.”). In addition, evidence that many of a company’s first-line supervisors had actual knowledge of the harassing behaviors (some of them may have participated in the harassment and others may have simply worked closely with those who did), would be sufficient under Young to hold that the company had notice of sexual harassment within the plant, if these supervisors had a duty or reasonably could be believed to have such a duty, under the company’s sexual harassment policy, to “pass on the information to someone within the company who has the power to do something about it.” 123 F.3d at 674. The negligence analysis is the same. An employer can be said to be negligent for company-wide sexual harassment when it has a policy or practice of tolerating a work environment that it knows or should have known is permeated with sexual harassment, but does not take steps to address the problem on a company-wide basis. The assertion that it may have investigated individual cases of sexual harassment will not be a defense to pattern or practice liability. Jenson v. Eveleth Taconite Co., 824 F.Supp. 847, 887 (D.Minn.1993). A systemic remedy is necessary to correct a company-wide problem. “Situation-specific” responses will not suffice. Id. Steps must be taken to determine whether individual incidents, which occur frequently and continuously, are “indicative of a larger problem requiring a company wide response.” Id. (citing Rauh v. Coyne, 744 F.Supp. 1186, 1189 (D.D.C.1990)). In Bundy v. Jackson, 641 F.2d 934 (D.C.Cir.1981), the District of Columbia Circuit Court of Appeals found that when an employer knows of sexual harassment, it “should promptly take all necessary steps to investigate and correct any harassment, including warnings and appropriate discipline directed at the offending party, and should generally develop other means of preventing harassment within the [organization].” Id. at 947. The Bundy approach works well in a pattern or practice case, because it recognizes the distinction between “situation-specific” remedies, which do not address the company-wide problem, and company-wide remedies which are directed at eradicating the discriminatory policy and the effects of that policy. In a pattern or practice case, an employer must take company-wide action to establish that it has not been negligent. The “effectiveness” of the remedial action, however, is also relevant to the negligence analysis. In Robinson v. Jacksonville Shipyards, Inc., the district court found that although the employer in that case “did respond to some aspects of the sexually hostile work environment, the effectiveness of its response must be evaluated.” 760 F.Supp. at 1531. The Robinson court then outlined the two methods of measuring effectiveness that have received endorsement. Id. One, the employer’s total response is evaluated on the basis of the circumstances as then existed. The employer’s response is ineffective if “it delay[ed] unduly ... [and] the action it [did] take, however promptly, [was] not reasonably likely to prevent the misconduct from recurring.” Two, an employer can defend successfully by showing that the conduct brought to the company’s attention was not repeated after the employer took action. In this regard, the employer must show that the effectiveness of the actions, not merely that actions were taken. Id. (internal citations omitted). In short, to find that an employer was “negligent” in a pattern or practice case, the EEOC must show that the employer had notice, failed to take steps to remedy the company-wide problem.of harassment that it knew or should have known about, and, if it took steps, failed to take effective steps. Such a showing should be sufficient to establish a “policy” of tolerance by the company toward sexual harassment that would justify a finding of pattern or practice liability, so long as the other objective showings necessary to establish the. existence of severe and pervasive harassment on a wide-scale basis are in place. ■2. Rationale The Court’s rationale for eliminating the subjective proofs necessary in an individual action at the pattern or practice phase is quite simple. Sexual harassment claims involve individual questions and defenses which cannot be tried, as to the class, on common issues of liability. This is the problem and the solution. A pattern or practice case can be established without the subjective showings required by Meritor and Harris. In fact, to require subjective showings would needlessly conflate the proofs necessary to establish a pattern or practice with those necessary to establish individual liability for sexual harassment. Such conflation would cause confusion and essentially undermine the goals of a pattern or practice case. Meritor and Harris, with their focus on an individual action of discrimination, did not address pattern or practice liability and, therefore, were not called upon to recognize that the purpose of a pattern or practice case is different than the goal of an individual action. This Court, ■therefore, concludes that Meritor and Harris do not apply lockstep to a pattern or practice case for sexual harassment. In a pattern or practice case, the EEOC acts both for the benefit of specific individuals who are subject to discrimination by the employer and “to vindicate the public interest in preventing employment discrimination.” General Tel. Co. of the Northwest, Inc. v. E.E.O.C., 446 U.S. 318, 326, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980) (footnote omitted). The goal of vindicating the public’s interest in eradicating systemic discrimination by private employers is central to the purpose of a pattern or practice action. In such an action, the EEOC seeks to impose pattern or practice liability upon an employer who violates Title VII on a system-wide basis to enjoin the employer’s discriminatory practices. Individual relief is permitted once pattern or practice liability is established, but, it is not the central or the initial focus of a pattern or practice case. Individual issues, therefore, are not even relevant until the individual relief stage — a stage which occurs only if pattern or practice liability has first been established. Accordingly, pattern or practice eases are not like individual actions, even though individuals typically may be able to obtain relief based on a pattern or practice finding. Instead, pattern or practice cases target large scale, system-wide discriminatory practices and their effects, rather than “simply intentional wrongs.” See Pub.L. No. 92-261, H.R.Rep. No. 92-238 (June 2, 1971). The purpose and effect of a successful pattern or practice case is to impose liability upon a private employer, not simply for individual wrongs, but for discriminatory policies created and maintained by an employer that result in a system-wide pattern or practice of disparate treatment against individuals who fall within a protected class. Consistent with the imposition of liability for a system-wide, rather than an individual, wrong is Title VII’s provision of injunctive relief, rather than monetary damages. 42 U.S.C. § 2000e-5(g). See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 361, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). See also Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 470 (8th Cir.1984); Jenson v. Eveleth Taconite Co., 824 F.Supp. 847, 888 (D.Minn.1993). When the EEOC establishes pattern and practice liability, the federal district court is authorized to enjoin the discriminatory practices of the employer. Injunc-tive relief achieves a public benefit, because it is intended to eradicate, insofar as possible, an ongoing practice of discrimination by a private employer against its employees and to “eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (citation omitted). Injunctive relief, however, does not remedy the damage already done to the individuals who have been the victims of this system-wide discrimination prior to the establishment of pattern or practice liability. Pattern or practice cases have, therefore, been designed in a way that permit individual victims of an employer’s pattern or practice of discrimination to obtain' individual relief based on a presumption of liability that flows from the pattern or practice finding against the employer. See generally Teamsters, 431 U.S. at 357-60, 361-62 (“The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy.”). B. Individual Relief Phase — Phase II 1. Method of Proof The Teamsters presumption of liability, however, does not work at the individual relief phase of a sexual harassment case. The problem is that the presumption of liability that typically flows from a pattern or practice action shifts the burden of proof (rather than production) to a company. Shifting a burden of proof does not work in a pattern or practice action for sexual harassment, because individual relief for sexual harassment, even if the harassment for which a plaintiff recovers is based on a pattern or practice of tolerance by an employer, still requires a plaintiff to prove that she was subjectively harmed by the harassing conduct under Meritor and Harris. Proof of subjective harm is not relevant to the pattern or practice ease and cannot be admitted at Phase I. Therefore, to presume liability and shift the burden of proof to an employer in Phase II, without requiring an individual to make her subjective showings, would presume away an individual’s burden of proof on elements essential to the establishment of individual liability for sexual harassment under Meritor and Harris. The United States Supreme Court has expressly cautioned the federal courts not to do this. Acknowledging that differing factual situations may require a more flexible framework for “establishing a prima facie case of diserimination[,]” the Court made clear that inferences cannot be created which reheve a plaintiff of her ultimate burden of proof. The importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act. Teamsters, 431 U.S. at 358 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). A finding of pattern or practice liability for sexual harassment does not give rise to any obvious presumptions with regard to individual liability for sexual harassment, because, there are subjective perceptions that must be taken into account in Phase II. All that the EEOC will have established in Phase I by a finding of pattern or practice is that an objectively reasonable person would find that, as a whole, the environment within the company is hostile and that the company was on notice of and was negligent regarding the systemic problem. To simply eliminate the presumption that can and should flow from the pattern or practice case altogether, however, as did the district court in Jenson v. Eveleth Taconite Co., 824 F.Supp. 847, 876 (D.Minn.1993), would effectively disassociate the pattern or practice case from the individual cases so that there would be no benefit to the individual class members from a pattern or practice finding. We do not believe that eliminating any and all presumptions, as Jenson did, is the solution. “Presumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with a party’s superior access to the proof.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 359, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). This Court, unlike the district court in Jenson, believes that a rebuttable presumption can be applied at the individual relief phase, Phase II, to help individuals secure relief for their individual claims. In a pattern or practice case, the finding of objective discrimination in Phase I may be applied at Phase II to relieve an individual claimant of her prima facie burden to prove that element. The subjective elements of an individual’s sexual harassment claim, although not established by the pattern or practice case, are not difficult to make out in Phase II. The gravamen of an individual’s sexual harassment claim is that the complained of conduct was unwelcome. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Harris v. Forklift Sys. Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). The proof needed to establish a subjective perception of abuse in the typical individual case for hostile environment and quid pro quo sexual harassment, however, is minimal, virtually a formality; the charging party must merely testify that she found the alleged conduct to be hostile or abusive at the time it occurred. Unless the respondent produces evidence to the contrary, the subjective prong of the analysis will be satisfied. The burden of coming forward with evidence to challenge the plaintiff’s assertion that the alleged harassment was “unwelcome” has always been on the employer. Absent such evidence, the mere fact that a person is now complaining is enough to minimally satisfy the subjective prong of the sexual harassment claim. Shifting the burden of production to the employer on the subjective prong, in a pattern or practice case, therefore, does not appear to be anything new in sexual harassment law, since that burden has essentially always been borne by the employer. Thus, having found a pattern and practice of sexual harassment in Phase I, the likelihood that any potential class member would be able to satisfy the threshold proof required to establish the subjective element of her claim, in Phase II, is highly probable. In fact, a presumption shifting the burden of production to the employer to offer some evidence showing that its conduct was welcomed by a particular female employee is consistent with the realistic expectation that it is the employer, not the female employee, who will be in the best position to produce such evidence. This rebuttable presumption also furthers the goal codified in Rule 1 of the Federal Rules of Civil Procedure to secure the just, speedy, and inexpensive determination of every action. ■ By ordering the proof to conform with the probabilities that an individual can easily offer proof of her subjective perception of discrimination, a presumption may be applied to shift the burden of production on this issue to the employer, still leaving the ultimate burden of proof on the subjective elements to the individual' plaintiffs. This approach, unlike the approach taken in Jenson, is more consistent with the essential nature of a pattern or practice case. The existence of a presumption is essential in a pattern or practice case, because “[a] finding of a'discriminatory pattern or practice creates ‘a greater likelihood, that any single decision was a component of the overall pattern,’ and changes ‘the position of the employer to that of a prove[n] wrongdoer.’ ” See e.g., Craik v. Minnesota State Univ., 731 F.2d 465, 471 n. 9 (8th Cir.1984) (citing Int’l Bind, of Teamsters v. United States, 431 U.S. 324, 359-60 n. 45, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). To eliminate the presumption, as Jenson did, ignores the likelihood that the individual decisions a company makes about individuals, consistent with its company-wide pattern or practice, are discriminatory. Rather than eliminating the presumption, this Court chooses to extend a rebuttable presumption of individual liability to all women in the workplace. It then becomes the goal of Phase II to determine which of the women are actually part of the “affected class.” Teamsters, 431 U.S. at 331 n. 6. The concept of an “affected class” is not new. In Teamsters, the parties and the Court acknowledged some limitation on the members of the class who could benefit from the presumption(s) which flowed from a finding of pattern or practice liability. Id.; Jen-son, 824 F.Supp. at 885 (the plaintiff must establish that, she was .an “ ‘affected individual,’ that is, that she, personally, was as affected by the conduct as the reasonable woman.”). Limiting the presumption of liability to the “affected class” acknowledges that not all individuals in the class are necessarily entitled to the presumption, while preserving the presumption’s benefit for those who are entitled to it. How then does one determine which members of the potential class have been subjectively “affected” by the objectively hostile environment for liability to be established? This Court’s solution is to change the Teamsters model slightly to make the employer’s burden one of production rather than proof. A burden of production requires an employer to come forward with evidence to show that the individual members of the potential class, either in whole or in part, did not subjectively perceive the environment as hostile. In this way, it is the employer who essentially determines, based upon its individual defenses, who belongs in the affected class and who does not. Until an employer’s individual defenses are proffered, however, one can “presume” from an objective pattern or practice finding that the working environment, as a whole, is hostile, and that most women would also find such an environment subjectively hostile. One may also presume from a pattern or practice finding of sexual harassment that an employer is on notice that individuals within its workforce are experiencing sexual harassment. The employer may not know precisely who the affected individuals are, but the knowledge that a hostile environment exists, which gives rise to a duty' to remediate the company-wide problem, certainly also gives rise to a similar duty to seek out and investigate individual cases of sexual harassment that the employer knows .or should know about, so that the remediation occurs both at the systemic and the individual level. This Court sees no inherent unfairness in presuming from a pattern or practice finding that the employer has notice that individual members of its workforce are subject to sexual harassment within its enterprise. Knowing exactly who these individuals are is a function of the reporting systems set up within the organization and, therefore, relates to the negligence analysis. If a supervisor knows or has reason to know that a particular individual is being harassed, the assertion that this individual did not formally complain is no defense. The Seventh Circuit recently made clear that a plaintiff has no duty to complain about discriminatory harassment. See Perry v. Chernin, 126 F.3d 1010, 1015 (7th Cir.1997). Failure to complain can be relevant, but only if the harassment cannot be discerned in any other way. Id. If the harasser is the very person within the company charged with a duty to report and/or investigate harassment; then the victim’s “failure” to complain will not be a defense for the employer on the basis that it did not have “notice.” Id. This is especially true in a pattern or practice case where the employer has been found to be a proven wrongdoer with notice of- company-wide harassment by individuals' in its workforce. If the employer is found liable for a pattern or practice of tolerating sexual harassment within its company, it stands to reason that the employer also tolerates individual sexual harassment, and a presumption to this effect is in order. The issues of notice and negligence, however, require some thought. Although “[a] plaintiff has no duty under the law to complain about discriminatory harassment, .. the employer ... will not be liable if it had no reason to know about it. Nor does a plaintiff have a legal duty to cooperate with the employer’s investigation; but the reasonableness of the employer’s attempts to rectify harassment is measured against how much it knows or should have known.” Id. at 1015. A pattern or practice finding that an employer had notice (ie., knowledge) and was negligent in responding to the pervasive hostile environment probably means — but does not necessarily mean — that this same employer was negligent with regard to the individuals working there. In fact, it is quite possible that, although the employer failed to take remedial action with regard to the systemic problem, it did take an unusual course with respect to certain individuals by intervening in legally appropriate ways to correct individual problems of harassment. Thus, an individual would still need to bear her ultimate burden of proof on the issues of notice and negligence. There is, however, no need to duplicate proofs with respect to the objective findings of notice and negligence established in Phase I. All that is required in Phase II is for the individual claimant to assert that the employer had notice and was negligent with regard to the harassment she suffered. It will then be necessary, as it is in an individual case, for the employer to come forward with some evidence rebutting these assertions. If the employer fails to produce such evidence, then the presumption of notice- and negligence which flows from the pattern or practice finding, together with the individual’s subjective assertion of such facts, is enough to establish a basis for individual liability. If the employer does, however, proffer such evidence, it will be up to the individual plaintiff to satisfy her .burden of proof on these elements. 2. Rationale These conclusions are supported, we believe, by the following rationale. Although “isolated” or “sporadic” instances of harassment experienced by a person in an individual action are typically not enough to establish hostile environment sexual harassment, single instances of conduct must be taken together with the continuous pattern of harassment in the workplace, as a whole, which was established at the pattern or practice phase. It is this total environment which establishes the context for a particular plaintiffs experience of harassment. When the work environment is permeated with sexual harassment, an individual’s exposure to this environment may be severe enough to impose individual liability. In fact, a finding of pattern or practice liability takes into account the necessity of showing “more than the mere occurrence of isolated or accidental or sporadic discriminatory acts[,]” because it requires a pattern of consistent behavior. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). To disregard the pattern or practice findings at the individual relief phase would be unrealistic. An individual’s personal experience of sexual harassment is part of the larger context in which she works. Although she may be the target of only one or two incidences of harassment by an individual, these incidences are part of a pattern of conduct by the employer that is actionable. The individual claimant is, therefore, not only a victim of the individual acts of discrimination perpetrated by the harasser within the plant, but she is also the victim of a systemic policy of tolerance by the company. It is this systemic policy, together with the individual acts of harassment, for which the employer is hable in Phase II, because it is the policy which makes the perpetration of the individual conduct possible. The two types of conduct, the employer’s tolerance and the harasser’s behavior, cannot .be artificially separated. It is the employer’s tolerance of the individual acts of sexual harassment that make the continuation of such harassment against individuals possible. Proof of such conduct, therefore, must work together to establish the total environment. The net effects of this environment may yield a pattern or practice finding, and the individual conduct within the environment may yield individual liability. The pattern or practice finding, however, makes it easier to believe that á company’s decisions regarding individual incidents of harassment were discriminatory. See Teamsters, 431 U.S. at 359 n. 45, 362 (proof of pattern or practice supports inference that aiiy particular employment decision made while discriminatory policy in force was made in pursuit of that policy). The Court believes that the framework we have set forth for proving a pattern or practice ease through which individuals can obtain individual relief remains true to the mandates of Title VII and the case law defining the contours of actionable sexual harassment. To summarize, this Court’s solution is to keep the basic.Teamsters framework, but to do two things: (1) eliminate the application of the subjective showings required by Meritor and Harris in Phase I because a pattern or practice case focuses on the employer’s objective policy or practice, not individual charges of discrimination and therefore does not contemplate the need for subjective or individual proofs, or defenses; and (2) change the presumption in Teamsters from an absolute presumption of liability that shifts the burden of proof to the respondent to a rebuttable presumption of liability that merely shifts the burden of producing some evidence that certain of the women were not subjectively offended by the pervasive hostile environment. This burden of production allows the respondent to identify, by its proofs, who belongs in the affected class and who does not. Once the employer comes forward with its individual defenses, those class members who have been challenged with elimination will then carry the ultimate burden of proving and persuading the trier of fact that they were subjectively affected. For the other individuals who have not been challenged, the presumption turns into a finding of individual liability. The parties will.then move to Phase III, the individual damages phase. II. Procedural Questions We now turn to the procedural questions raised by Mitsubishi’s motion for partial summary judgment. These questions require consideration of matters outside the pleadings and are, therefore, properly raised in a motion for summary judgment. Mitsubishi’s motion raises four (4) procedural questions: (1) are the individual claims of sexual harassment barred by the statute of limitations; (2) is this action barred by the equitable doctrine of laches; (3) did the EEOC fail to engage in good faith conciliation efforts before the Commissioner filed his charge; and, if so, is this action barred by that failure; and (4) should the independent contractors whose names appear on the list of alleged- victims, submitted to the Court under seal by the EEOC, be dismissed because they are not “regular employees” of Mitsubishi? The EEOC’s motion for leave to amend its Complaint seeks to add allegations that would remedy any potential statute of limitations problems in its original Complaint. A. Undisputed Facts The following facts are undisputed for purposes of Mitsubishi’s motion for summary judgment regarding the procedural issues identified above. These facts are relevant to all of the procedural issues discussed below. This lawsuit began when the EEOC Commissioner filed a charge of discrimination alleging a pattern or practice of sexual harassment against Mitsubishi on April 19, 1994.- See Mits. Stmt, of Facts (“Stmt of Facts”), ¶36. The Commissioner’s charge stated: Specifically, the unlawful discriminatory practices include, but are not limited to: Maintaining discriminatory policies and practices and other terms and conditions of employment which operate to disadvantage females because of their sex, including the failure to provide a working environment free from sexual harassment. Id. at ¶ 37. After issuance of the Commissioner’s charge, the EEOC started its investigation of “pattern or practice” claims. Id. at ¶ 40. On August 9, 1995, the EEOC issued a Determination finding probable cause for the Commissioner’s charge. The Determination stated: I have determined that the evidence obtained in the investigation establishes reasonable cause to believe that Respondent has violated Title VII, by discriminating against a class of female employees on the basis of sexual harassment and sex-based harassment. Further, I have determined that reasonable cause exists to believe that Respondent retaliated against and constructively discharged a class of female employees in violation of Title VII. Id. at ¶¶ 43-44.. In this Determination, the EEOC also asked Mitsubishi to submit a proposed conciliation agreement within fourteen (14) days and stated that in the absence of a timely response, “we may conclude that further conciliation efforts would be futile or nonproductive.” Id. at ¶44. In a letter dated August 17, 1995, during conciliation negotiations, the EEOC asked Mitsubishi to accept the EEOC’s “concept of relief’ (e.g., policies and practices, training, affected class relief, reporting and monitoring), without worrying about “the actual amount of monetary relief due affected class members.” Id. at ¶¶ 48-49. On September 1,1995, Mitsubishi replied to the EEOC’s August 17, 1995 letter. Id. at ¶ 50. Mitsubishi’s September 1,1995 letter, stated, in relevant part: Affected Class Relief From the date the Company began operations through this date, the Company has employed in excess of 1,200 women. Of all of these, 28 filed claims that resulted in a lawsuit now before the Federal Court. We understand the desire of the EEOC to determine an affected class of our employees, but virtually all female past and present employees have been subjected to the plaintiffs’ extensive public-media campaign, direct personal, mailing and telephone solicitations. It is the Company’s position that further solicitation of claimants is unwarranted and that these 28 plaintiffs, alone, after all of their solicitation efforts are the only ones who chose to file a lawsuit. It is, furthermore, the Company’s position that the pending lawsuit addresses the issue of relief for persons who claim to be affected by the allegedly unlawful acts. Any further effort by the EEOC to pursue a remedy for these specific claimants would be duplicative and inappropriate. In short, there is no need for an affected class relief provision in any proposed conciliation agreement. Mits.Ex. 26 at 3-4. The September 1, 1995, letter went on to state: [T]he Company has acted responsibly in dealing with this issue. Unless the Commission can affirmatively and specifically demonstrate that one or more of the Company’s policies, practices and procedures somehow are erroneous, the Company is unwilling to modify them solely for the sake of change. With respect to the issue of relief for persons who claim to have been adversely affected, the pending lawsuit is sufficient to resolve their claims. It does not appear that further solicitation of claims would be appropriate. In fact, it could adversely impact the claims of the current plaintiffs. Id. at 5. On September 14, 1995, the EEOC sent a letter to Mitsubishi ending conciliation, noting that “further” conciliation efforts would be “futile or non-productive.” id. at ¶ 51. The EEOC filed its Complaint in this case on April 9, 1996. Id. at ¶ 52. The EEOC produced a list of 289 alleged victims to counsel for Mitsubishi on April 11, 1997. Id. at ¶ 54. The EEOC has included among the 289 alleged victims all women who have ■ received right to sue letters from the EEOC and/or who have been plaintiffs in other actions filed in federal court. Id. at ¶ 56. The EEOC has also included among its alleged victims, six women who are or were contract employees of Mitsubishi, and twenty-five women whose employment with Mitsubishi ended prior to June 23,1993. Id. at ¶¶ 57-58. B. Four Questions 1. Statute of Limitations Mitsubishi’s first procedural challenge involves a timeliness question. Mitsubishi seeks to bar certain individuals from obtaining individual relief by arguing that a 300-day statute of limitations applies to cut off all individual claims that were not filed with the EEOC 300 days before the Commissioner’s charge was filed. Mitsubishi’s argument is that the Commissioner’s charge is controlling for purposes of determining the timeliness of the discrimination claims of the vast majority of class members who did not file their own charges with EEOC or IDHR. Mitsubishi also argues that employees who left the company more than 300 days before the Commissioner filed his charge and employees who did not complain to the company about harassment within this 300-day window are also time-barred. Finally, Mitsubishi claims that the complaints of harassment it did receive and did address prior to the 300-day window are not actionable. The EEOC counters with three arguments: (1) it has authority to seek relief for aggrieved individuals irrespective of the 300-day limitations period; (2) it can proceed with claims beyond the 300-day period because Mitsubishi’s conduct constitutes a continuing violation; and (3) even if a 300-day limitations applies and there is no continuing violation exception in this case, the three individual charges timely filed with the EEOC would extend the limitations period to 300 days prior to the date that the first individual claimant filed her charge. The parties have complicated an already complicated timeliness question by failing to acknowledge one simple fact: this is a § 707 pattern or practice-case, as well as a § 706 case. Although § 707(e) indicates that a § 707 action is subject to the procedural requirements of § 706, there is no statutory language, no regulation, no case, and no commentator which definitively holds that there is any limitations period applicable to a § 707 pattern or practice case initiated by the filing of a Commissioner’s charge. In fact, the very nature of a pattern or practice case attacking systemic discrimination by a company seems to preclude the application of a limitations period. Because this Court finds, for the reasons set forth below, that a § 707 pattern or practice case is not subject to a limitations period, all individual claims that seek relief based on this pattern or practice will be allowed into the individual relief phase. The fact that some claims might otherwise be time-barred under § 706, which does expressly contain its own limitations period, both for individual and Commissioner charges, is irrelevant. (a) The § 707 Pattern or Practice Case There are two principle distinctions between a § 706 ease and a § 707 case. The first distinction is that a § 706 case is based on one or more individual charges or complaints of unlawful discrimination by an employer, and a § 707 case is based on a pattern or practice of systemic discrimination by an employer. Although both a § 706 case and a § 707 case can be filed by the EEOC in its own name and initiated by a “Commissioner’s charge,” rather than an individual charge, the converse is not true. A § 707 case cannot be initiated by an individual charge, and it cannot be filed as a civil suit by an individual. See generally General Tel., 446 U.S. at 327 (§ 707 pattern or practice cases not designed to advance personal interest of any particular aggrieved person). A § 707 case is a “pattern or practice” case that challenges systemic, wide-spread discrimination by an employer. Conversely, a § 706 case seeks to vindicate, sometimes on a class-wide basis, the rights of aggrieved individuals who are challenging an unlawful employment practice by an employer. The distinction is subtle and not immediately apparent from the language of Title VII, but it is, nonetheless, an important distinction. The second distinction between the two sections is that § 706 contains its own statute of limitations, whereas, § 707 does not. Although § 707(e) indicates that all actions brought under § 707 are subject to the procedural requirements of § 706, the application of a limitations period in a § 707 action does not make intuitive or legal sense. The statute and the regulations (promulgated by the EEOC) do not help clarify this very important issue. The U.S. Supreme Court acknowledged as much in EEOC v. Shell Oil Co., 466 U.S. 54, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984): Section 707(e) of the statute, 42 U.S.C. § 2000e-6(e), which authorizes the EEOC “to investigate and act on a charge of a pattern or practice of discrimination,” provides that “[a]ll such actions shall be conducted in accordance with the procedures set forth in [section 706, 42 U.S.C. § ] 2000e-5.” As indicated in the text, § 706 expressly delegate