News
Labor/Employment
Aug. 1, 2002
High Court Creates Bright-Line Rule on Continuing Violations
Focus Column - By Larry A. Walraven - The U.S. Supreme Court unanimously held in National Railroad Passenger Corp. v. Morgan , 122 S.Ct. 2061 (June 10, 2002), that the "continuing violations" doctrine does not apply to claims of discrete discriminatory or retaliatory conduct under Title VII of the Civil Rights Act of 1964.
Focus Column
By Larry A. Walraven
The U.S. Supreme Court unanimously held in National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002), that the "continuing violations" doctrine does not apply to claims of discrete discriminatory or retaliatory conduct under Title VII of the Civil Rights Act of 1964. In the same case, a narrow 5-4 majority held that the continuing-violations doctrine is available to Title VII plaintiffs claiming hostile-environment harassment.
Under Title VII, charges of discrimination must be filed with the Equal Employment Opportunity Commission within 180 days of an alleged "unlawful employment practice" or, in states with an entity authorized to seek relief for discrimination allegations (such as the California Department of Fair Employment and Housing), within 300 days.
The continuing-violations doctrine allows a plaintiff to assert claims for conduct that occurred both within and outside this limitations period.
The plaintiff, Abner Morgan, asserted claims against his employer, Amtrak, alleging that he had been subject to discriminatory conduct, retaliation and hostile-environment racial harassment over a period of 41/2 years. Some of the alleged conduct occurred within 300 days of Morgan filing his EEOC charge, while other conduct occurred more than 300 days before he filed the charge.
The U.S. District Court held that Amtrak could not be liable for conduct occurring before May 3, 1994. The District Court analyzed the continuing-violations issue under a test established by the 7th U.S. Circuit Court of Appeals. Galloway v. General Motors Service Parts Operations, 78 F.3d 1164 (7th Cir. 1996).
Under the 7th Circuit's test, a plaintiff may not sue for "conduct that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct, as in a case in which the conduct could constitute, or be recognized, as actionable harassment only in the light of events that occurred later, within the period of the statute of limitations."
The District Court found that since "Morgan believed that he was being discriminated against at the time all of these acts occurred, it would not be unreasonable to expect that Morgan should have filed an EEOC charge on these acts before the limitations period on these claims ran."
The 9th Circuit reversed the District Court. The appellate court applied a different test in analyzing the continuing-violations issue, finding that the pre-limitations conduct was "sufficiently related" to the post-limitations conduct to invoke the continuing-violations doctrine.
In reversing the 9th Circuit in part, the Supreme Court unanimously held that nothing in Title VII indicates that "related discrete acts" of discriminatory or retaliatory conduct should be converted into a single unlawful practice for purposes of fulfilling the statute's filing requirements.
Recognizing that "[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify," the Supreme Court concluded that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges."
Thus, with respect to allegations of discriminatory and retaliatory conduct, each discrete discriminatory act starts a new clock for filing a charge. As a caveat, consistent with existing case law, the court noted that while time-barred acts are not actionable themselves, evidence of such acts still may be admitted as background evidence to support a timely claim.
The court left for another day the issue of when the charge-filing period begins to run on discrete claims of discrimination or retaliation. The court's majority expressly acknowledged that "[t]here may be circumstances where it will be difficult to determine when the time period should begin to run. One issue that may arise in such circumstances is whether the time begins to run when the injury occurs as opposed to when the injury reasonably should have been discovered."
In concurrence, Justice Sandra Day O'Connor, joined by two other justices, expressly stated that "some version of the discovery rule applies to discrete-act claims." In O'Connor's view, the "charge-filing period precludes recovery based on discrete actions that occurred more than 180 or 300 days after the employee had, or should have had, notice of the discriminatory act."
While the justices were in agreement that the continuing-violations doctrine does not apply to discrete discrimination and retaliation claims, they split 5-4 on the applicability of the doctrine to hostile-environment harassment claims. Five of the justices, led by Justice Clarence Thomas, held that hostile-environment harassment claims are distinguishable from claims of discrete acts of discrimination or retaliation because "[t]heir very nature involves repeated conduct."
The majority reasoned that the nature of a hostile-environment claim is one "comprised of a series of separate acts that collectively constitute one 'unlawful employment practice.'" Because Title VII requires that a charge must be filed within 180 or 300 days of an alleged unlawful employment practice, as long as one component of the hostile-environment claim falls within the statutory time period for filing a charge, "the entire time period of the hostile environment claim may be considered by a court for purposes of determining liability."
The majority did note, however, that the equitable doctrine of laches still might be available to an employer "if a plaintiff unreasonably delays in filing suit and as a result harms the [employer]."
The dissenting justices on this issue, led by O'Connor, agreed with the majority's "characterization of a hostile environment discrimination as composing a single claim based on conduct potentially spanning several years." They disagreed, however, "with the Court's conclusion that, because of the cumulative nature of the violation, if any conduct forming part of the violation occurs within the charge-filing period, liability can be proved and damages can be collected for the entire hostile environment."
Because the dissenters would not make a distinction between discrimination claims and hostile-environment claims when applying Title VII's statute of limitations, only harassing conduct that occurred within the limitations period would be actionable.
While Morgan establishes a bright-line distinction for the application of the continuing-violations doctrine to various types of claims under Title VII, employers should be mindful that the case only applies to Title VII claims. For example, the decision is not controlling authority with respect to claims asserted under the California Fair Employment and Housing Act.
While the California Supreme Court has not yet addressed facts identical to Morgan, in other cases, it has not adopted a bright-line distinction between harassment, on the one hand, and discrimination and retaliation, on the other. Rather, the California Supreme Court has held that the continuing-violations doctrine applies to a state claim if the employer's alleged unlawful actions are sufficiently similar in kind, have occurred with reasonable frequency and have not acquired a degree of permanence. Richards v. CH2M Hill Inc., 26 Cal.4th 798 (2001).
Larry A. Walraven is a partner in the labor and employment department of O'Melveny & Myers in Newport Beach. He represents employers in labor and employment litigation.
By Larry A. Walraven
The U.S. Supreme Court unanimously held in National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002), that the "continuing violations" doctrine does not apply to claims of discrete discriminatory or retaliatory conduct under Title VII of the Civil Rights Act of 1964. In the same case, a narrow 5-4 majority held that the continuing-violations doctrine is available to Title VII plaintiffs claiming hostile-environment harassment.
Under Title VII, charges of discrimination must be filed with the Equal Employment Opportunity Commission within 180 days of an alleged "unlawful employment practice" or, in states with an entity authorized to seek relief for discrimination allegations (such as the California Department of Fair Employment and Housing), within 300 days.
The continuing-violations doctrine allows a plaintiff to assert claims for conduct that occurred both within and outside this limitations period.
The plaintiff, Abner Morgan, asserted claims against his employer, Amtrak, alleging that he had been subject to discriminatory conduct, retaliation and hostile-environment racial harassment over a period of 41/2 years. Some of the alleged conduct occurred within 300 days of Morgan filing his EEOC charge, while other conduct occurred more than 300 days before he filed the charge.
The U.S. District Court held that Amtrak could not be liable for conduct occurring before May 3, 1994. The District Court analyzed the continuing-violations issue under a test established by the 7th U.S. Circuit Court of Appeals. Galloway v. General Motors Service Parts Operations, 78 F.3d 1164 (7th Cir. 1996).
Under the 7th Circuit's test, a plaintiff may not sue for "conduct that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct, as in a case in which the conduct could constitute, or be recognized, as actionable harassment only in the light of events that occurred later, within the period of the statute of limitations."
The District Court found that since "Morgan believed that he was being discriminated against at the time all of these acts occurred, it would not be unreasonable to expect that Morgan should have filed an EEOC charge on these acts before the limitations period on these claims ran."
The 9th Circuit reversed the District Court. The appellate court applied a different test in analyzing the continuing-violations issue, finding that the pre-limitations conduct was "sufficiently related" to the post-limitations conduct to invoke the continuing-violations doctrine.
In reversing the 9th Circuit in part, the Supreme Court unanimously held that nothing in Title VII indicates that "related discrete acts" of discriminatory or retaliatory conduct should be converted into a single unlawful practice for purposes of fulfilling the statute's filing requirements.
Recognizing that "[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify," the Supreme Court concluded that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges."
Thus, with respect to allegations of discriminatory and retaliatory conduct, each discrete discriminatory act starts a new clock for filing a charge. As a caveat, consistent with existing case law, the court noted that while time-barred acts are not actionable themselves, evidence of such acts still may be admitted as background evidence to support a timely claim.
The court left for another day the issue of when the charge-filing period begins to run on discrete claims of discrimination or retaliation. The court's majority expressly acknowledged that "[t]here may be circumstances where it will be difficult to determine when the time period should begin to run. One issue that may arise in such circumstances is whether the time begins to run when the injury occurs as opposed to when the injury reasonably should have been discovered."
In concurrence, Justice Sandra Day O'Connor, joined by two other justices, expressly stated that "some version of the discovery rule applies to discrete-act claims." In O'Connor's view, the "charge-filing period precludes recovery based on discrete actions that occurred more than 180 or 300 days after the employee had, or should have had, notice of the discriminatory act."
While the justices were in agreement that the continuing-violations doctrine does not apply to discrete discrimination and retaliation claims, they split 5-4 on the applicability of the doctrine to hostile-environment harassment claims. Five of the justices, led by Justice Clarence Thomas, held that hostile-environment harassment claims are distinguishable from claims of discrete acts of discrimination or retaliation because "[t]heir very nature involves repeated conduct."
The majority reasoned that the nature of a hostile-environment claim is one "comprised of a series of separate acts that collectively constitute one 'unlawful employment practice.'" Because Title VII requires that a charge must be filed within 180 or 300 days of an alleged unlawful employment practice, as long as one component of the hostile-environment claim falls within the statutory time period for filing a charge, "the entire time period of the hostile environment claim may be considered by a court for purposes of determining liability."
The majority did note, however, that the equitable doctrine of laches still might be available to an employer "if a plaintiff unreasonably delays in filing suit and as a result harms the [employer]."
The dissenting justices on this issue, led by O'Connor, agreed with the majority's "characterization of a hostile environment discrimination as composing a single claim based on conduct potentially spanning several years." They disagreed, however, "with the Court's conclusion that, because of the cumulative nature of the violation, if any conduct forming part of the violation occurs within the charge-filing period, liability can be proved and damages can be collected for the entire hostile environment."
Because the dissenters would not make a distinction between discrimination claims and hostile-environment claims when applying Title VII's statute of limitations, only harassing conduct that occurred within the limitations period would be actionable.
While Morgan establishes a bright-line distinction for the application of the continuing-violations doctrine to various types of claims under Title VII, employers should be mindful that the case only applies to Title VII claims. For example, the decision is not controlling authority with respect to claims asserted under the California Fair Employment and Housing Act.
While the California Supreme Court has not yet addressed facts identical to Morgan, in other cases, it has not adopted a bright-line distinction between harassment, on the one hand, and discrimination and retaliation, on the other. Rather, the California Supreme Court has held that the continuing-violations doctrine applies to a state claim if the employer's alleged unlawful actions are sufficiently similar in kind, have occurred with reasonable frequency and have not acquired a degree of permanence. Richards v. CH2M Hill Inc., 26 Cal.4th 798 (2001).
Larry A. Walraven is a partner in the labor and employment department of O'Melveny & Myers in Newport Beach. He represents employers in labor and employment litigation.
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