Partial Demise of the Continuing Violations Doctrine in Title VII Claims:
by Craig D. Tindall*[ad/articles728.htm]
de Montesquieu, the 17th Century French lawyer and political
philosopher, wrote: “the wording of laws should mean the same thing to all
Montesquieu’s ideal was sound theory.
Applying it to reality, however, is quite another matter.
As proof, take Title VII of the Civil Rights Act of 1964.
Since its passage, the courts have disagreed over some of its most
critical provisions. On June 10,
2002, the United States Supreme Court addressed one of the more virulent Title
VII issues, the doctrine of continuing violations,
in National R.R. Passenger Corp. v.
addressed the split among the court on how to interpret Title VII’s statutory
time limitation on the filing of charges of discrimination against an employer.
Further proving the difficulty of Montesquieu’s ideal, even at the Supreme
Court level this law apparently does not mean the same thing—five of the nine
Justices disagreed with some part of the majority opinion.
Morgan presents new and important case
law. The statutory limitation of
Title VII requires that a charge of discrimination be filed with the Equal
Employment Opportunity Commission within 300 days or, if a state does not have
an agency whose charter is similar to the EEOC’s, within 180 days.
Most states have some employment law enforcement agency.
Consequently, the filing of a charge of discrimination is most often
required within 300 days of a prohibited act.
If a charge is not timely filed, a claim for acts that proceeded the
limitation is barred.
Notwithstanding this ostensibly clear limitation, some courts have allowed plaintiffs to assert Title VII claims for actions that occurred before the statutory period if those actions constitute a “continuing violation.” The courts do not agree on what facts constitute a continuing violation. Needless to say, a great deal of confusion surrounded claims of continuing violations and, clearly, the United States Supreme Court needed to address this important issue. Therefore, on June 25, 2001 the Supreme Court granted certiorari in the Morgan case.
Morgan case dealt with the short, conflict-filled career of Abner
Morgan at Amtrak. Morgan joined Amtrak in 1990 as an electrician helper.
He felt, however, that he qualified for the superior position of
electrician, having more experience than white co-workers holding that higher
position. At one point he applied
for and was denied an apprentice position.
Eventually he was promoted to electrician and his pay was brought in line
with other employees holding the same position.
He later asserted that his hiring in the lesser position and denial of
the apprentice position were discriminatory actions.
however, apparently found Morgan to be less than a model employee. In 1991, he
was terminated for insubordination, although he was later reinstated with his
union’s assistance. He was
counseled on numerous occasions for absenteeism and insubordination.
Toward the end of his employment at Amtrak, Morgan was accused of
threatening a manager and was finally terminated in March 1995 for refusing to
follow orders. Morgan complained that throughout his career with Amtrak his
managers used racial epithets and consistently harassed and disciplined him more
harshly than other employees because of his race.
In February 1995, Morgan filed charges of discrimination and retaliation against Amtrak with the EEOC and California Department of Fair Employment and Housing. The EEOC issued its right to sue letter in July 1996. Morgan brought suit against Amtrak in October of that year. Many of the actions that Morgan complained about occurred more than 300 days before the filing of his EEOC charge. They would, therefore, have been barred if he could not rely on the continuing violation doctrine.
moved for summary judgment, asserting that all of Morgan’s claims based on
actions that occurred 300 days prior to his filing of a charge of discrimination
The District Court, relying on the test established by Seventh Circuit in
Galloway v. General Motors Service Parts
granted Amtrak summary judgment.
In Galloway, the Seventh
Circuit held that Title VII time limitations apply unless a plaintiff could not
have reasonably brought suit before the statute had run.
For example, if the actionable conduct did not reasonably constitute
harassment, or could not reasonably be recognized as harassment, without the
consideration of subsequent events—what became known as the “notice
exception”—there was a continuing violation.
The District Court held that because Morgan knew the actions he
complained about were discriminatory at the time they occurred, he could not
rely on the Galloway notice exception.
summary judgment, the parties tried the remaining issues. Amtrak secured a
defense verdict, which Morgan then appealed.
appeal, the Ninth Circuit reversed the District Court’s summary judgment. The Circuit Court rejected application of the Galloway
notice exception and, instead, held
that a plaintiff could avoid Title VII time limitations by establishing the
existence of “serial violations.”  Serial violations involve a series of related
acts that are not isolated, sporadic, or discrete, at least one of which was
within the statutory limitation.
Alternatively, the Ninth Court stated that a plaintiff could show
“systemic violations” by proving that the employer had a systematic policy
or practice of discrimination that operated, at least in part, within the
appropriate time frame.
to the Ninth Circuit, either serial or a systemic violation would constitute a
continuing violation that could avoid the strict statutory limitations of Title
VII. Therefore, with
Morgan’s circumstances, the Ninth Circuit felt that genuine issues of disputed
fact over whether Amtrak’s conduct constituted serial or systemic violation
precluded summary judgment and, therefore, ordered a new trial.
appealed the Ninth Circuit’s decision to the United States Supreme Court. Reviewing the doctrine of continuing violations under Title
VII, the Supreme Court noted that the divergent approaches of the Circuit
Courts, while reasonable, were not actually compelled by the language of the
Quoting a past opinion, the Supreme Court held that “strict adherence
to the procedural requirements specified by the legislature is the best
guarantee of evenhanded administration of the law.”
parsing the language of the statute, the Supreme Court noted that Congress had
mandated the filing of a charge within a specific time period after an unlawful
employment practice occurred.
Therefore, because Congress clearly intended for charges of employment
discrimination to be promptly prosecuted, a literal reading of Title VII’s
time limitation provisions, while perhaps less equitable than some might argue,
Supreme Court recognized, however, that merely analyzing the words of a statute rarely answers all of the questions. Consequently, with the Morgan opinion the Court endeavored to address “[w]hat constitutes
an ‘unlawful employment practice’ and when has that practice
‘occurred’” in both discrete discriminatory acts and hostile work
Discrete Discriminatory Acts
Court held, logically, that “a discrete retaliatory or discriminatory act
‘occurred’ on the day that it ‘happened.’
Morgan had argued the limitations of Title VII do not apply to discrete
acts because the language of the statute refers to an “unlawful employment
practice,” and the word “practice” connotes more than on discrete act.
The Supreme Court rejected that argument, pointing out that the examples
Congress used to define that term “unlawful employment practice,” included
numerous specific actions.
Additionally, previous decisions by the Supreme Court were inconsistent
with Morgan’s argument.
As a result of
this interpretation, the Supreme Court held that “discrete discriminatory acts
are not actionable if time barred, even when they are related to acts alleged in
timely filed charges.”
Each discriminatory act, therefore, has its own time clock for filing a
Claims based on asserted serial violations that occurred prior the time
limitation are not valid.
The Supreme Court further recognized that merely ending serial violation claims did not resolve all potential issues. First, the Court noted that there would be questions about whether the limitation period begins to run when the incident occurs or when the wrongful action is discovered. The Court also foresaw that pattern-or-practice claims could present limitation problems. Neither situation was at issue in the Morgan case and the Court, unfortunately, chose not to provide any guidance.
any event, the Court felt compelled to remind its readers that Title VII’s
time limitations are not jurisdictional in nature.
Therefore, Title VII claims are subject to equitable tolling and estoppel.
The Court also reiterated that prior acts, while barred as a basis for a
claim, might be offered as background in support of acts upon which a timely
claim is based.
Hostile Work Environment Claims
eliminated continuing violation claims for discrete acts, the Supreme Court
turned to the application of the doctrine in a hostile work environment claim.
According to the majority of the Court, a hostile work environment by its nature
involves the cumulative effect of conduct perpetuated over an extended period.
Many factors may contribute to such a claim; for example, the frequency
of the wrongful conduct, its severity, the use of physical threats or
humiliation, and whether the conduct unreasonably interfered with work, are all
considerations that must be accumulated in the assessment of a hostile work
VII’s term “unlawful employment practice,” in a hostile work environment
claim, is comprised of a series of separate acts that collectively constitute
As a result, the Court held that it does not matter that some of the
components of the actionable conduct occurred prior to the statutory limitation
period. In fact, the Court provided
examples of charges where conduct constituting a hostile workplace occurs more
than 300 days prior to filing a charge but where “related” wrongful actions
occur within 300 days of the charge being filed thus supporting a valid claim.
Under these examples, all of the prior conduct, even if it occurred well
outside the 300-day limit, could be brought into the claim.
Supreme Court addressed the obvious concern that instances of conduct engaged in
long ago could be used to create current liability for a hostile work
The Court opined that the use of untimely circumstances is somewhat
tempered by a trial court’s discretionary power to dismiss claims that are
unduly prejudiced by a plaintiff’s delay.
For example, a defendant may argue the equitable defense of laches in
response to a dilatory charge of discrimination.
The Supreme Court expressly refused, however, to define the parameters of
“’how—and how much—prejudice must be shown’ or ‘what consequences
follow if laches is established.’”
Consequently, much of the anxiety that employers will experience over the
possibility of prior conduct being raised to support a current claim is left
unaddressed by the majority’s opinion.
Lastly, the Supreme Court explained that Title VII “in no way bars a plaintiff from recovering damages for that portion of the hostile environment that falls outside the period for filing a timely charge.” In the Court’s view, the statutory limitation on liability is apparently not a limitation on damages. The Court, by way of example, pointed to the fact that Congress authorized compensatory damages of up to two years of backpay, something it would not have done if the 300-day limitation was intended to be a limit on damages.
Supreme Court majority concluded by stating “that a Title VII plaintiff
raising claims of discrete discriminatory or retaliatory acts must file his
charge within the appropriate time period—180 or 300 days— . . . . A charge
alleging a hostile work environment claim, however, will not be time barred so
long as all acts which constitute the claim are part of the same unlawful
employment practice and at least one act falls within the time period.
Neither holding, however, precludes a court from applying equitable
doctrines that may toll or limit the time period.”
with most opinions in the Title VII arena, future application of the opinion
should prove interesting. Although
the Supreme Court sought to resolve one of the more confusing Title VII issues,
its opinion likely raises as many questions as it answered.
* Deputy City Attorney, Glendale, Arizona. The opinions expressed herein are solely those of the author and do not reflect the official position of any public entity.
 Charles-Louis de Secondat, Baron de Montesquieu, De l'Espirit des Lois (The Spirit of Laws), 1748.
 “Unquestionably the biggest area of disagreement—and arguably the most muddled area in all of employment discrimination law—is that of alleged “continuing violations.” Barbara Lindemann & Paul Grossman, Employment Discrimination Law, 1351 (3d ed. 1996)(hereinafter “Lindeman”).
 42 U.S.C. § 2000e-5(e)(1).
 See e.g., Anderson v. Reno, 190 F.3d 930 (9th Cir. 1999); Barry v. Board of Supervisors of L.S.U., 715 F.2d 971 (5th Cir. 1983).
 Compare Anderson, supra, with Barry, supra and Galloway v. General Motors Service Parts Operations, 78 F.3d 1164 (7th Cir. 1996). See also Lindeman, 2000 Supplement, p. 700, and the cases cited in the footnotes thereto. (“The Cases addressing the ‘continuing violations’ theory as an exception to the charge-filing limitations period continue to defy easy description or convenient categorization.”)
 Background facts are taken from the Ninth Circuit’s opinion, Morgan v. National R.R. Passenger Corp., 232 F.3d 1008, 1010-13 (9th Cir. 2000)(hereinafter “Morgan (9th Cir.)”), and the Supreme Court’s summary of the relevant background information, National R.R. Passenger Corp. v. Morgan, 2002 WL 1270268, p. 4 (2002)(hereinafter “Morgan”).
 Morgan (9th Cir), supra, at 1014.
 78 F.3d 1164 (1996).
 Morgan (9th Cir), supra, at 1014.
 Galloway, supra at 1167.
 Morgan (9th Cir), supra, at 1015.
Id. at 1014.
 Id. at 1018. The Ninth Circuit also rejected a similar exception established in the Fifth Circuit in Berry v. Board of Supervisors, 715 F.2d 971, 981 (1983).
 Morgan (9th Cir.), supra at 1015.
 Morgan, supra at 5.
 Id. (citing Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).
 Id. The actual language of the statute states: “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” 42 U.S.C. 2000e-5(e)(1). Using standard tenets of statutory interpretation, the Court held that the word “shall” created an obligation impervious to judicial discretion, citing Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998), and “after” meant took place or happened in the past.
 Id. at 6.
 Id. The example cited is 42 U.S.C. § 2000e-2(a): “It shall be an unlawful employment practice for an 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 or employment, because of such individual’s race, color, religion, sex, or national origin . . . “
 Id. The Court cited as examples Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 234 (1976); Bazemore v. Friday, 478 U.S. 385 (1986); United Air Lines, Inc. v. Evans, 431 U.S. 553 (9177); Delaware State College v. Ricks, 449 U.S. 250 (1980).
 Id at 7.
 Id. In a footnote, the Court noted that an issue might arise as to whether the limitation period begins to run when the incident occurs or if the discovery rule should applied and the limitation period run from when it wrongful action is discovered. Id. at 8, n. 7. Although the Court recognized this as a potential issue, it declined to provide any guidance toward a resolution. A dissent of three justices, while agreeing that the application of the discovery rule was not at issue in Morgan, nonetheless stated their opinion that the discovery rule would be applicable to the Title VII statutory limitation. Id. at 13.
 Conversely, however, the Court noted that plaintiffs are not barred from filing a charge on a discrete act that occurs within the time allowed even if that act is related to previous acts that are time barred. Id. at 7.
 Id. at 8, n.7.
 Id. at 8, n.9. “Pattern-or-practice suits, by their very nature, involve claims of classwide discrimination. Such claims involve an allegation that the defendant’s actions constitute a pattern or conduct in which the defendant intentionally has discriminated against the plaintiff’s protected class.” Lindeman, at 44, n. 168.
 Id. at 7 (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)).
 Morgan, at 7.
 Id. at 8. Justice O’Connor, writing in partial dissent, was joined by Chief Justice Rehnquist in the opinion that “a general atmosphere of discrimination [is] not completely reducible to particular discriminatory acts, each day the worker is exposed to the hostile environment may still be treaded as a separate occurrence, and claims based on some of those occurrences forfeited.” Morgan, at 13, O’Connor dissent.
 Id. at 9 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)).
 42 U.S.C. § 2000e-5(e)(1).
 Morgan, at 10.
 Id. It could be argued that employers face the risk of defending at trial a viable hostile work environment claim after the employer believes they have rectified a discriminatory situation and a substantial amount of time has pass since the violation. When one misstep occurs, although that misstep itself may not constitute discrimination, see Harris, supra at 21 (a single act of harassment may not be actionable on its own); see also Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), and that misstep is considered with the other distant actions, the employer might be precluded from securing summary judgment. The Court in Morgan does, however, mention that “certain intervening action by the employer” may cut the relationship between the last act and the prior conduct. Morgan, at 10. Unfortunately, those intervening actions are not specified in any detail.
 Id. at 12 (quoting from Lindemann at 1496-1500). Furthermore, the Court raised the question of whether laches, which traditionally could not be asserted against the government, could be used in instances of delay by the EEOC. Id. at 12, n. 14. Justice O’Connor, joined by Chief Justice Rehnquist, pointed out that a plaintiff, although risking the granting of equitable relief to the defendant, could theoretically sleep on discriminatory conduct for 10 years then raise it as an issue. Id. at 14.
 Id. at 10.
 42 U.S.C. § 2000e-5(g)(1). The Supreme Court also noted that other explicit limitation on damages are found in the statute and cited 1981a(b)(3), which limits compensatory and punitive damages, as another example. Id. at 10.
 In dissent, however, Justice’s O’Connor and Rehnquist pointed out that while the time for filing is a limit on liability, a “restriction on damages for occurrences too far in the past flows only as an obvious consequence.” Justice O’Connor noted that the two years backpay provision would still be effective notwithstanding a 300-day limit on liability when equitable relief was appropriate. Id. at 15.
 Id. at 12.
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