Supreme Court Clarifies "Continuing Violations"
by Darrell R. VanDeusen and Emily H. Nothstein*

For years, employment lawyers have been confronted with claims of "continuing violations" of discrimination. The litigation strategy is simple, but the stakes are high: a plaintiff's lawyer wants to expand her case to include as many incidents of alleged discriminatory treatment as possible. Defense lawyers want to narrow the case to only those alleged acts that fall within the statute of limitations for filing a charge. A broad interpretation of what constitutes a "continuing violation" favors the plaintiff, with a more narrow definition assisting employers. It was, therefore, with great anticipation that employment lawyers waited to see what track the Supreme Court would take in its latest ride on the continuing violation train.

In National Railroad Passenger Corp. (Amtrak) v. Morgan,^[1] the Supreme Court provided some clarification on the application of the continuing violation theory under anti- discrimination laws, as applied to discrete acts of discrimination and to hostile work environment claims. The Court unanimously held that the continuing violation doctrine does not apply to claims of discrete or retaliatory acts. As such, a court cannot consider acts that fall outside the statutory filing period. ^[2] In a 5 - 4 decision the Court held that, unlike claims of discrete acts, hostile work environment claims are not time barred when all events complained of are part of the same unlawful employment practice constituting a hostile work environment and that at least one event falls within the statutory time limit. ^[3]

It was anticipated that Morgan would clarify the murky waters of the continuing violation theory, however, it merely narrowed the scope of uncertainty. While it is now settled that serial chains of discrete acts lie beyond the reach of the continuing violation theory, it is still not clear how the doctrine will be applied to hostile work environment claims or to issues of timeliness. Lower federal courts will still confront such convoluted issues without a clear road map.

Background of the Continuing Violation Doctrine

Under Title VII, the continuing violation doctrine refers to an employer's ongoing discriminatory conduct toward an employee. The doctrine is usually asserted by a plaintiff so that she can include in her charge alleged discriminatory acts which occurred outside the 180 or 300 day charge filing period. ^[4] The first significant Supreme Court case addressing the continuing violation doctrine came in 1977, in United Airlines v. Evans.^[5] Evans was illegally forced to resign, but did not file a timely charge of discrimination. Evans was later rehired, but United refused to retroactively apply her seniority to the date of her initial hire. In response, she filed a timely charge in which she sought seniority credit for her previous position. The Supreme Court rejected this claim, holding that refusal to grant seniority was a present act of past discrimination, not actionable under Title VII. ^[6] The Court held that, in a discrimination case, the focus must be whether any present violation exists, not whether there is some continuity with past discrimination. ^[7] Thus, after Evans, no claim based on the residual effect of time barred discriminatory acts was actionable.

Next came Delaware State College v. Ricks ^[8] in 1980, which reasserted the holding of Evans. Ricks, a professor, was denied tenure and given a one year terminable contract. Two months before the contract ended, Ricks, filed his EEOC charge. Ricks asserted that the statute of limitations did not begin to run until his termination became "final" at the end of the one year contract. The College countered that the limitations period began to run when Ricks received notice of the alleged discriminatory act. Following its holding in Evans, the Supreme Court agreed with the College, and held that a present effect of discrimination does not extend the limitations period for a past discriminatory act. ^[9] That is, Ricks' time for filing began to run when he learned of an employment action that he considered discriminatory, not when he felt the pain of that decision.

Six years later, the Court made things less clear when it found continuing violation of Title VII in Bazemore v. Friday. ^[10] Here, a group of black employees challenged a discriminatory pay system that paid higher salaries to white employees. The Supreme Court held while the discriminatory pay system was implemented long before Title VII applied, the employer was liable for each discriminatory payment made after Title VII's enactment because each payment was a discriminatory and actionable act under Title VII. ^[11] The Court held that each time a black employee got a paycheck that was discriminatorily smaller than a white employee, it was another violation of Title VII, and therefore a continuing violation of the Act.

In the aftermath of these decisions, lower federal courts have sought to pigeonhole continuing violations into one of two categories. The first fit is similar to that of Bazemore ^[12] where an employer's Title VII discriminatory practice existed and continued before, during, and after the limitations period. Here the practices are themselves discriminatory and therefore an employee's charge is timely as long as it is filed within 300 days after one alleged discriminatory act. In addition, an act which falls within the charge filing period must be related to the initial acts of alleged discrimination to permit those otherwise untimely events to be considered. Courts have differed as to the degree of relatedness required between the present act and initial discriminatory act, however. ^[13]

The second type of violation fits the scenario in Ricks where an employee is subject to one discrete act of discrimination, but, the effect of the action occurs later. In this situation, if the one time discriminatory act is time barred, the present effect of that discrimination does not extend the time period. In order to apply the continuing violation doctrine in this situation, the present effect must be discriminatory itself. ^[14] In such situations the charge filing period will begin to run at the time of the initial discrimination.

Filtering through the Supreme Court's mixed messages, the lower federal courts have found it difficult to determine what constitutes an actionable unlawful practice and what constitutes an un-actionable delayed effect of past discrimination. Another discrepancy among the Courts of Appeal regards the application of a notice rule. Instead of examining the connection between timely and untimely acts, some Circuits look to an employee's notice of the discriminatory act. If the court determines that it would have been unreasonable to expect the plaintiff to sue before the limitations period ran out, the continuing violation doctrine applies. ^[15] In applying this rule, Courts being the limitation period when the plaintiff "knew or should have known" of the discriminatory act. The Ninth Circuit has not applied these rules at all, instead it takes the position that notices tests are not applicable to continuing violations. ^[16] These issues have traditionally made the continuing violation doctrine a tangled web of mixed interpretations. Until now. The Supreme Court's decision in Morgan sheds some light on the appropriate application of the continuing violation doctrine, the meaning of a unlawful employment practice, how to determine when a discriminatory act occurred and the appropriate application of a notice rule.

The Background of Morgan

Abner Morgan was hired by Amtrak in 1990 as an electrician's helper. In February 1995 he filed a charge alleging race discrimination and retaliation against Amtrak with the EEOC. In his charge, Morgan alleged that he was "consistently harassed and disciplined more harshly than other employees on account of his race". ^[17] Morgan's examples of this alleged discrimination included his hiring as an electrician helper instead of an electrician; his termination for not following orders; Amtrak's refusal of his request to partake in apprenticeship programs; and racial comments made by his managers. The EEOC issued a "Notice of Right to Sue" in July 1996 and Morgan filed suit in October.

Amtrak filed a motion for summary judgment arguing that many of Morgan's claims were time barred by the 300 day charge filing period. Though some of the alleged discriminatory acts occurred less than 300 days before he filed his charge, many of his claims exceeded it. The District Court granted Amtrak partial summary judgement, holding that the employer could not be liable for any act that fell outside of the 300 day filing period. The District Court partly based its ruling on the application of a "reasonable notice" test, established by the Seventh Circuit,^[18] which states that claims based on an act occurring outside of the statute of limitations cannot constitute actionable discrimination unless it would have been unreasonable to expect the plaintiff to file a claim within the limitations period. ^[19] The District Court held that it was not unreasonable to expect Morgan to file his charges within the 300 day limitation period since at the time of the alleged acts he believed they were discriminatory in nature. ^[20]

On appeal, the Ninth Circuit reversed and remanded finding all Morgan's claims actionable under Title VII. In its opinion, the Ninth Circuit applied the continuing violation doctrine and held that courts may consider time barred acts if the untimely acts represent an ongoing unlawful employment practice. ^[21] The Court found that Morgan successfully established that to permit them all to go forward, the untimely acts were sufficiently related to the timely acts. ^[22] Thus, the Court held, Morgan had presented genuine issues of material fact as to whether a continuing violation occurred. The Ninth Circuit rejected the Seventh Circuit's reasonable notice test and held that there could be no such limitation on the continuing violation doctrine. ^[23] The Supreme Court granted certiorari. ^[24]

The Supreme Court's Decision

The issues before the Court were as follows: What constitutes an unlawful employment practice and when has that practice occurred? The Court addressed these issues in the contexts of both discrete discriminatory acts and hostile work environment claims.

The Court unanimously held that each discrete incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice,^[25] and such acts occur on the day that they happen. On the issue of hostile work environment there was a 5 - 4 split. The plurality characterized hostile work environment claims as repetitive in nature and, being so, held that they are comprised of a series of separate acts that together constitute one unlawful employment practice and that such a claim cannot be said to occur on any particular day. ^[26]

Writing for the Court, Justice Thomas consulted and adhered to the language of the relevant statutes. In determining what constitutes an unlawful employment practice in the context of discrete act claims the Court examined the Section 703(a) of Title VII and found that among the cited unlawful practices numerous discrete acts were included. ^[27] The Court found no statutory indication that the term practice converts related discrete acts into a single unlawful practice. The Court also addressed the issue of when a discrete act is deemed to have occurred and concluded with ease that a discrete act occurs on the day that it happened.

Based on these findings, the Court reversed the Ninth Circuit's application of the continuing violations doctrine to a series of discrete acts. ^[28] The Court held that each discrete act starts its own limitation period and a plaintiff's charge cannot apply to acts that fall outside of the 300 day limitation period regardless of whether they are sufficiently related to a timely act.

The second part of the opinion, a five justice plurality highlighted one situation to which the continuing violation doctrine does apply: hostile work environment claims. ^[29] The Court first pointed out that a hostile work environment is repetitive in nature. Therefore, hostile work environment claims involve a series of separate acts. However, unlike a series of discrete acts, it is the combination of these acts together that constitute one unlawful employment practice. The task left for the lower courts is to determine whether all acts claimed constitute one actionable hostile work environment claim.

The Court also held that since hostile work environment claims consist of repetitive acts this claim cannot be said to occur on any particular day. In addition, if at the time of filing the charge, some of the component acts fall outside the limitations period, a court may consider the entire hostile work environment for purposes of liability. However, at least one act must fall within the limitations period; another task for the lower courts. Extending the liability time period, the Court said, is consistent with Congress's two year provision of back pay. ^[30] The Court inferred that if it was Congress's intent to limit liability to 180 or 300 days in every instance it would not have allowed the recovery period to exceed the statutory limitation period. ^[31]

The Court did not affirm the notice test adopted by some Circuits. ^[32] It reasoned that a hostile work environment claim encompasses a series of acts and it is permissible for some of these acts to fall outside of the filing period, therefore, a rule defining when acts outside the limitations period are permissible is inapplicable.

This decision does not leave employers helpless, said the Court, due to the applicability of the equitable doctrines of waiver, estoppel, and equitable tolling. ^[33] The Court recognized that statutory limitations may not sufficiently protect a defendant who is improperly prejudiced by plaintiff's conduct. ^[34] Laches is also an available defense in the face of unreasonable prejudice and delay. ^[35]

The dissenting Justices held that the statutory application of the charge filing provision ^[36] should apply to all actions under Title VII, including hostile work environment claims. Though they agree that a hostile work environment claim is comprised of a series of acts, they hold that this in no way supports extending the filing period to include originally time barred claims. The dissent fears that permitting this, in the context of hostile work environment, will enable plaintiffs to 'sleep on their rights'. ^[37] Allowing a court to hear stale actions contradicts the policy behind all statutes of limitations, including Title VII's charge filing period. ^[38] The dissent opined that regardless of whether the claim involves a hostile work environment, each discriminatory act in a series of acts starts the statutory limitations period all over again. To hold differently, the dissent asserted, permits plaintiffs to bootstrap time barred claims in their charge. ^[39]

Where Do We Go From Here?

Although many practitioners anticipated that Morgan would solve all issues related to the continuing violation doctrine, the decision is not that broad. With the exception of the Ninth Circuit, most appellate courts agreed that each discrete act of alleged discrimination starts a new limitations period, and that a discrete act occurs on the day it happens. The clarification provided by Morgan is that the continuing violation doctrine does apply to hostile work environment claims. No real surprise there.

Many practitioners hoped that Morgan would provide some guidance as to the applicability of the "knew or should have known" rule to continuing violations. But the Court did not provide real guidance here, skipping any analysis of the "knew or should have known" rule. The Court spent little time on this issue, and by dealing only with hostile work environment claims, left one to wonder whether the notice rule applies in other cases. ^[40]

So, what about all other types of continuing violations? At first glance it could appear that Morgan only applies to hostile work environment claims and that the continuing violation doctrine only applies to these claims. In footnote 9, however, the Court stressed that the opinion does not address timely filing questions with respect to "pattern-or-practice" claims brought by private litigants.^[41] Does the continuing violation even apply to pattern or practice claims then? Morgan is silent. If the opinion only addresses hostile work environment types of continuing violations, does the "knew or should of known" rule apply to other continuing violations? The Supreme Court left these issues for another day.

^[1]   122 S.Ct. 2061 (2002).

^[2]   See Id. at 2073; 42 U.S.C. 2000e-5(e)(1).

^[3]   See Id. at 2075; Under Section 706 of Title VI, and other anti-discrimination laws, a charging party has 180 days to file a charge of discrimination with the EEOC, or 300 days if the state in which the alleged discrimination occurred has its own Fair Employment Practice (FEP) agency. As most states have an FEP agency, the 300 day limitations period generally applies, and is used in this article as the limitations period. Individuals considering filing a charge should be sure to check to see what the limitations period is in their state.

^[4]   42 U.S.C. § 2000e-5(e)(1).

^[5]   431 U.S. 553, 14 FEP 1510 (1977).

^[6]   See Id. at 558.

^[7]   See Id.

^[8]   449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980).

^[9]   Id. at 258.

^[10]   478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986).

^[11]   See Id. at 395.

^[12]   See Carter v. West Pub. Co., 225 F.3d 1258, 1264 (11th Cir. 2000); Web v. Indiana National Bank, 931 F.2d 434, 438 (7th Cir. 1991).

^[13]   The Courts of Appeals have differed as to the application of the continuing violation doctrine to a series of discriminatory acts. SeeZinke v. Slater, 34 Fed. Appx 667, 672 (10th Cir. 2002) (if the plaintiff seeks relief for claims not in original charge they must be reasonably related to the allegations of the charge.); Morgan v. National Railroad Passengers Corp. (Amtrak), 232 F.3d 1008,1015-1016( 9th Cir. 2000)(plaintiff can recover for practices outside the limitations period if they are sufficiently related to conduct within limitations period.); Jackson v. Quanex Corp., 191 F.3d 647, 668 (6th 1999) (continuing violation if the practice is either related or longstanding); Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1166- 1167 (7th 1996) (in a sexual harassment case, the acts were so discrete in time or circumstance that they could not relate or link to each other to establish a continuing violation); Cardenas v. Messey, 269 F.3d 251, 256 (3rd 2001) (no continuing violation if the allegedly related acts are facially neutral and just consequences of a prior act that falls outside the limitations period); Celestine v. Petroleosa Venezuela, 266 F.3d 343, 352 (5th Cir. 2001) (to establish a continuing violation a plaintiff must show an organized scheme leading to and including present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence that gives rise to this cause of action.)

^[14]   See Carter, 225 F.3d at 1264

^[15]   See Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996).

^[16]   See Fielder v. UAL Corp., 218 F.3d 973, 987 (9th Cir. 2000) (The Ninth Circuit held that a notice test is not applicable in determining the continuation of a hostile work environment), see also Anderson v. Reno, 190 F.3d 930 (9th Cr. 1999) and Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998).

^[17]   See 122 S.Ct. at 2068 citing App. to Pet. For Cert. 25a..

^[18]   See Galloway, 78 F.3d at 1167.

^[19]   See Id.

^[20]   122 S.Ct. at 2068.

^[21]   See 232 F.3d 1008, 1014 (9th Cir. 2000) citing Anderson v. Reno, 190 F.3d 930, 936 (9th Cir. 1999).

^[22]   In the Ninth Circuit's view a plaintiff can establish a continuing violation in one of two ways. First, a plaintiff may show a series of related acts one or more of which are within the limitations period. This serial violation is established if evidence establishes that the untimely and timely acts are sufficiently related. The second way is by a showing of a systematic policy or practice of discrimination that operated, in part, within the limitations period.

^[23]   See 232 F.3d at 1015.

^[24]   533 U.S. 927, 121 S.Ct.2547, 150 L.Ed.2d 715 (2001).

^[25]   122 S.Ct. at 2071.

^[26]   See Id. at 2074.

^[27]   42 U.S.C. §2000e-2(a) ("It shall be an unlawful employment practice for any employer–(1)to fail or refuse to hire or to discharge any individual, or otherwise 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...").

^[28]   122 S.Ct. 2061, 2073.

^[29]   See Id. at 2074-2075. The five justice plurality included, Thomas J, the opinion's author and Stevens, Souter, Ginsberg and Breyer, J.J.

^[30]   42 U.S.C. 2000e-5(g).

^[31]   122 S.Ct. 2061, 2075.

^[32]   122 S.Ct. 2061, 2075.

^[33]   See Carlyle Towers Condominium Ass'n Inc. v. FDIC, 170 F.3d 30 (2d Cir. 1999), Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127 (1982).

^[34]   See Id.

^[35]   u> See e.g. Raley v. Board of Comm., 752 F. Supp.1272, 1277 (D. Md. 1990) (Laches may be invoked as a defense to Title VII claims. To prove laches the defendant must show: (1) unreasonable delay in bringing the action and (2) resulting prejudice from the delay).

^[36]   42 U.S.C. § 2000e-5(e)(1).

^[37]   122 S.Ct. 2061, 2078-2079.

^[38]   See Id. at 2079; 42 U.S.C. 2000e-5(e)(1).

^[39]   Id.

^[40]   See Id. at 2075, n. 9 ("It is precisely because the hostile work environment encompasses a single unlawful employment practice that we do not hold, as some of the Circuits, that the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.")

^[41]   See Id. at 2073.

* Emily Nothstein is a third year law student at the University of Maryland School of Law. She will graduate with a joint JD/MBA degree in May 2003. Emily received her B.A. from Villanova University in 1998. She has worked as a summer associate for Kollman and Saucier, PA in 2001 and 2002.

Reprinted by permission from Matthew Bender's "Labor and Employment Bulletin."

July 2002

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