                            In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

Nos. 05-2933 & 05-4176
BERNARD PRUITT, et al.,
                                          Plaintiffs-Appellants,
                                v.

CITY OF CHICAGO, ILLINOIS,
                                           Defendant-Appellee.
                         ____________
       Appeals from the United States District Court for the
          Northern District of Illinois, Eastern Division.
        No. 03 C 2877—Samuel Der-Yeghiayan, Judge.
                         ____________
ARGUED SEPTEMBER 8, 2006—DECIDED DECEMBER 28, 2006
                   ____________


 Before EASTERBROOK, Chief Judge, and CUDAHY and
MANION, Circuit Judges.
  EASTERBROOK, Chief Judge. Ten of Chicago’s mainte-
nance workers at O’Hare Airport filed this suit under
42 U.S.C. §1981 plus Title VII of the Civil Rights Act of
1964. They contend that for more than 20 years Anthony
Jason, a foreman, insulted and hassled black and Hispanic
workers, denying them the same terms and conditions of
employment that others enjoyed. They also maintain that
Jason used his position to deprive them of promotions and
inflict unequal discipline. The charge of discrimination
was not filed until after Jason retired. The district court
declined to certify plaintiffs as representatives of a class
of all laborers who worked with Jason, 2004 U.S. Dist.
2                                   Nos. 05-2933 & 05-4176

LEXIS 9103 (N.D. Ill. May 19, 2004), and it later dismissed
the whole case as time-barred.
  Plaintiffs’ lead argument on appeal is that the district
judge should have certified a class. Coming after the
plaintiffs have lost on the merits, that’s problematic. Do
they want to take all other employees down in flames with
them? If so—or if they just don’t care about that
risk—then they have demonstrated inadequacy as other
workers’ representatives and rendered class certification
impossible. See Fed. R. Civ. P. 23(a)(4). What’s more,
plaintiffs do not come to grips with the ground on which
the district court acted. The judge concluded that the
proposed class flunked the numerosity requirement, see
Rule 23(a)(1), because joinder of the fewer than 40 workers
affected by Jason’s excesses and desiring to participate
(some maintenance workers told the court that they
wanted no part of this suit) would be practical. Plaintiffs
argue at length that all other requirements of Rule 23
have been satisfied, and maybe that’s so, but if joinder
would be practical then the other criteria don’t matter.
Sometimes “even” 40 plaintiffs would be unmanageable,
but plaintiffs do not contend that this is one of those
occasions. They devote only one page of their brief to Rule
23(a)(1) and do not discuss why it would be any harder to
have 40 plaintiffs than to have 40 hearings (each em-
ployee’s interactions with Jason, and the resulting dam-
ages if any, are person-specific) as part of one class action.
So we proceed to the merits, and our decision will affect
only the ten named plaintiffs.
  Claims about discrete employment actions, such as
failure to promote, must be made within 300 days under
Title VII or four years under §1981. See National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 110-15 (2002);
Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004).
That discrete acts may have been mixed with a hostile
environment does not extend the time; Morgan, which
Nos. 05-2933 & 05-4176                                       3

involved just such a mixture, shows as much. Morgan also
tells us that a hostile environment is one wrong, and that
an employee therefore may file the charge (under Title VII)
or suit (under §1981) within the statutory time from the
last hostile act. 536 U.S. at 115-21. In litigation that is
timely under this approach, the employee may refer to
hostile acts that occurred earlier, because the “entire
hostile work environment encompasses a single unlawful
employment practice.” Id. at 117. Plaintiffs contend that
Morgan makes the 20-year history of Jason’s hostile
behavior actionable, even if discrete acts such as disci-
pline and lack of promotion are no longer contestable.
  The Justices recognized in Morgan that their treatment
of a hostile environment as one discriminatory employ-
ment practice had the potential to drag up ancient history,
to the employer’s prejudice. The Court sought to deal
with this possibility by authorizing district judges to
invoke the doctrine of laches. It wrote:
   This Court previously noted that despite the
   procedural protections of the statute “a defendant
   in a Title VII enforcement action might still be
   significantly handicapped in making his defense
   because of an inordinate EEOC delay in filing the
   action after exhausting its conciliation efforts.”
   Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S.
   355, 373 (1977). The same is true when the delay
   is caused by the employee, rather than by the
   EEOC. Cf. Albemarle Paper Co. v. Moody, 422 U.S.
   405, 424 (1975) (“[A] party may not be ‘entitled’ to
   relief if its conduct of the cause has improperly
   and substantially prejudiced the other party”). In
   such cases, the federal courts have the discretion-
   ary power to “to locate ‘a just result’ in light of the
   circumstances peculiar to the case.” Id., at 424-
   425.
4                                  Nos. 05-2933 & 05-4176

    In addition to other equitable defenses, therefore,
    an employer may raise a laches defense, which
    bars a plaintiff from maintaining a suit if he
    unreasonably delays in filing a suit and as a result
    harms the defendant. This defense “ ‘requires proof
    of (1) lack of diligence by the party against whom
    the defense is asserted, and (2) prejudice to the
    party asserting the defense.’ ” Kansas v. Colorado,
    514 U.S. 673, 687 (1995) (quoting Costello v.
    United States, 365 U.S. 265, 282, (1961)). We do
    not address questions here such as “how—and how
    much—prejudice must be shown” or “what conse-
    quences follow if laches is established.” 2
    Lindemann [& Grossman, Employment Discrimi-
    nation Law] 1496-1500 [(3d ed. 1996)]. We observe
    only that employers may raise various defenses
    in the face of unreasonable and prejudicial delay.
536 U.S. at 121-22 (footnote omitted). The district court
concluded that plaintiffs were guilty of unwarranted de-
lay and that Chicago had been prejudiced; that’s why it
dismissed the suit as untimely.
  Plaintiffs devote much of their brief to arguing that
laches applies only to suits in equity and may not be used
to shorten a statutory period of limitations. Whatever one
can say for and against that proposition—which divided
this court in Martin v. Consultants & Administrators, Inc.,
966 F.2d 1078 (7th Cir. 1992); see also Herman v. Chicago,
870 F.2d 400 (7th Cir. 1989)—Morgan tells us that hostile-
environment claims are exceptional. The Supreme Court
treated a hostile environment as one employment prac-
tice, potentially reaching far into the past; to curtail the
effect of this conclusion on the short period for filing a
charge under Title VII, it also told courts to apply the
doctrine of laches. Having given generously with one hand,
the Court took back some with the other. Our duty is to
Nos. 05-2933 & 05-4176                                    5

apply both aspects of Morgan, not just the plaintiff-
favoring portion.
   The district court found both unreasonable delay and
prejudice; it is hard to fault either conclusion. If what
plaintiffs say about Jason is true, they had ample basis for
suit 10, 15, or 20 years ago. The situation they describe is
not remotely like one that concerned the Justices in
Morgan, in which it may be difficult to tell whether a
given supervisor’s misconduct is isolated as opposed to
so severe or pervasive that it amounts to a hostile and
discriminatory environment. There was nothing isolated,
infrequent, or moderate about the statements and con-
duct that the plaintiffs attribute to Jason. Delay cannot
be justified by a desire to find out what the workplace
will be like in a few months, and to gather facts in order
to avoid making baseless charges. “How much is too much”
may be a difficult assessment in many cases, but if plain-
tiffs are telling the truth they knew by 1981 that Jason’s
behavior was over the line.
  As for prejudice: By the time plaintiffs finally filed
charges of discrimination, Jason was on leave and soon to
retire. He moved outside the district court’s subpoena
power and has refused to return. Plaintiffs’ counsel tried
for months to schedule a deposition of Jason in his cur-
rent home town; the efforts were unavailing. A deposition
that Jason gave in another suit shows that by 2003 he
had suffered a stroke and was experiencing severe
memory problems; he was unable to answer most of the
questions asked of him. Plaintiffs say that they com-
plained about Jason to his supervisor, Jason Bontempo,
who retired in 1998 and died in February 2003, two
months before plaintiffs filed their complaint. Whatever
Bontempo may have known is unavailable now. Plaintiffs
also say that they complained to O’Hare’s general manager
for operations, Hoan Le, who retired in 1992; all of Le’s
records were destroyed as outdated well before plaintiffs
6                                  Nos. 05-2933 & 05-4176

initiated litigation. Both sides sought the testimony of
Joyce Dunlop, plaintiffs’ union steward; efforts to obtain
her deposition have been unsuccessful because she is
suffering from cancer and other ailments. Although other
maintenance employees remain available to testify (as
are some supervisors), their memories of events in the
1980s and 1990s are unlikely to be reliable, and documents
that would have confirmed (or refuted) plaintiffs’ asser-
tions that they complained within the bureaucracy are no
longer in existence.
  This is quite enough to show prejudice. An employer
need not also show detrimental reliance on plaintiffs’
delay—for example, that it destroyed records as a re-
sult of a belief that they would not sue. See Smith v.
Caterpillar Inc., 338 F.3d 730, 735 (7th Cir. 2003); cf. Hot
Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 824 (7th Cir.
1999). It is hard to see how an employer can rely, detri-
mentally or otherwise, on delay in initiating litigation,
unless the employer knows that the workers were contem-
plating suit. Usually employers are ignorant of the work-
ers’ plans, and employers that doubt the occurrence of
discrimination would be ignorant even of a reason to
suspect that the workers may or should have been plan-
ning litigation. That’s why prejudice from the employees’
delay, rather than prejudice from a mistaken supposition
about what the employees would do, is all that’s required.
  There remains the final question posed by Morgan:
“what consequences follow if laches is established”? 536
U.S. at 122. The district court assumed that the upshot
of laches must be outright dismissal. Yet that’s not the
only possible consequence. A less severe consequence
would be to carve off the aspects of the plaintiffs’ claim
that are no longer subject to meaningful adversarial
testing. It might well be sensible to allow litigation about
events back to 1999 (four years before the §1981 suit
began) while foreclosing litigation about older events. That
Nos. 05-2933 & 05-4176                                      7

would respect the fact that prejudice is not an all-or-none
affair—evidence about what happened three or four years
ago is more accessible, and memories of that time more
reliable, than evidence about the events 10 or 20 years
earlier.
   Dismissing the whole suit because it is no longer feasible
to litigate about the most ancient of the asserted wrongs
could be functionally equivalent to giving the employer
an easement across Title VII. By violating the statute
for long enough, the employer would acquire a right to
continue indefinitely. That’s the upshot of Chicago’s
position and the district court’s holding: once Jason had
made plaintiffs’ lives miserable for a decade or so, laches
would bar all litigation no matter what Jason did in the
future. That can’t be right. It would be like saying that,
if Jason had punched Bernard Pruitt (the lead plaintiff )
in the nose every week, he could do so for the rest of
Pruitt’s life if two years passed without suit after the first
punch. (Two years is the statute of limitations in Illinois
for personal-injury suits.)
  Chicago allows that this would be an unacceptable
application of laches but replies that hostile-environment
claims differ: each punch is a discrete wrong, while (per
Morgan) a hostile environment is a single wrong. Applica-
tion of laches to a single wrong extinguishes the right to
sue. We doubt that this is what the Court meant in
Morgan when calling a hostile environment a single em-
ployment practice. The Court’s point was that Title VII
addresses the terms and conditions of employment, and
discrimination effected by making the workplace pain-
ful for one sex or race but pleasant for another is a single
kind of injury: one sues about the disparate terms and
conditions rather than about each insult, taunt, leer, or
physical contact. This does not imply that, if unequal
working conditions persist for years, the worker must
sue for the whole course rather than some subset.
8                                   Nos. 05-2933 & 05-4176

  If plaintiffs could have elected to limit their own claim to
events of 1999 and later, why can’t a court (using the
doctrine of laches) limit it for them? If, as Chicago main-
tains, Morgan really creates an all-or-none approach, why
did it reserve the question what the consequences of
laches would be? Consider a parallel: segregated educa-
tion. That, like a discriminatory workplace, is an ongoing
offense, but we held in Palmer v. Board of Education, 46
F.3d 682 (7th Cir. 1995), that pupils always may litigate
about current conditions even if delay in filing suit has
made it impossible to obtain relief for segregation during
earlier years.
  Although using laches to carve years out of a claim thus
may be a sensible way to answer the question reserved in
Morgan, it is not the relief that plaintiffs sought in the
district court. They did not try to identify the scope of the
prejudice caused by delay and specify a temporal bound
that would leave the opposing sides with roughly equal
access to evidence. Their appellate brief hints at such a
possibility but does not undertake any of the work neces-
sary to determine how far back the claim could reach
without undue prejudice to the employer. In the district
court plaintiffs’ argument was limited to the proposition
(one inconsistent with Morgan) that the claim must
stretch at least four years back because laches never may
be used to abbreviate the time allowed by a statute of
limitations. The City argued that plaintiffs have forfeited
the benefit of any other approach. Plaintiffs then filed a
reply brief that ignored the City’s argument that for-
feiture has occurred. Such a head-in-the-sand position is
unavailing. We hold the parties to the positions they
preserved in the district court, which means that we need
not attempt to draw a line between recent events (unaf-
fected by laches) and older ones where the employer’s
ability to defend has been undermined.
Nos. 05-2933 & 05-4176                                    9

  This also means that we need not discuss Chicago’s
fallback argument that Morgan’s one-employment-practice
holding is limited to Title VII (which has a short period of
limitations) and does not apply under §1981. If the City
is right, then an employee never may complain about
episodes of hostile environment that occurred more than
four years before the suit began. Whether that is so is a
question for another day.
  Plaintiffs pepper their brief with other contentions, none
developed fully. For example, plaintiffs complain about
seven items in the bill of costs but devote only a sen-
tence or two to each; insufficient development forfeits all
of these arguments. Appellate counsel must recognize that
scattergun contentions are doomed to failure. These and
all remaining arguments do not require further analysis.
                                                 AFFIRMED

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—12-28-06
