Supreme Court Rules on the Applicability of the Continuing Violation Doctrine in Employment Discrimination Cases Under Title VII

The Employment and Labor Law Alert
(The Employment and Labor Law Department)
June 28, 2002

The so-called "continuing violation doctrine" permits a plaintiff to assert employment discrimination claims that would ordinarily be time-barred so long as the untimely acts are part of an "ongoing unlawful employment practice" that encompasses acts within the limitations period. On June 10, 2002, the United States Supreme Court, in National R.R. Passenger Corp. v. Morgan, __ U.S. __, No. 001614, unanimously ruled that the continuing violation doctrine may not be utilized by a plaintiff-employee to resurrect otherwise untimely claims under Title VII that arise from "discrete acts" of employment discrimination. A 5-4 majority held, however, that the continuing violation doctrine may be applicable in cases of harassment/hostile work environment.

The majority opinion by Justice Clarence Thomas rejected the decision of the U.S. Court of Appeals for the Ninth Circuit insofar as that court had ruled that the plaintiff, Abner Morgan, could assert claims based upon alleged discriminatory actions by Amtrak, his former employer, which occurred several years before he filed his Title VII suit, notwithstanding the fact that Morgan's EEOC charge encompassed several discriminatory acts that occurred within the 300-day filing period under . Morgan, a black male, was hired by Amtrak in 1990 as an electrician's helper at Amtrak's Oakland, California maintenance yard. Morgan claimed that soon after he began his employment, he experienced what he perceived to be racial discrimination in the workplace. After only six months on the job, Morgan was terminated for refusing to meet with management. Morgan filed a grievance and was subsequently reinstated after a 10-day suspension. Morgan continued to have difficulty with his supervisors and brought his complaints to Amtrak's EEO office. In fact, prior to his termination and as a result of his internal EEO complaints, Amtrak's Inspector General intervened in his case. At issue were numerous disciplinary actions against Morgan for tardiness and absenteeism. Many of the disciplinary charges were withdrawn after Morgan filed grievances against his supervisors.

On February 27, 1995, Morgan filed a charge of discrimination with the EEOC. The EEOC issued a "Notice of Right to Sue" on July 3, 1996, and, in October 1996, Morgan initiated suit against Amtrak, claiming racial discrimination, harassment and retaliation under Title VII. Morgan alleged that during his employment with Amtrak he was "consistently harassed and disciplined more harshly than other employees on account of his race." Morgan also alleged that his supervisors had discriminated against him by, among things, failing to approve him for training programs and by forcing him to perform tasks which were outside of his job description.

While some of the allegedly discriminatory acts about which Morgan complained occurred within the 300 days of his filing with the EEOC, many of the acts which formed the basis for his suit took place prior to that time period. Morgan argued that the early acts that did not fall within the 300-day filing period under Title VII were part of a "continuing violation" and thus should be deemed timely in light of his other, timely claims.

The federal district court rejected Morgan's argument and granted partial summary judgment to Amtrak, ruling that the claims based upon acts which took place prior to May 1994 were time-barred. In so holding, the district court employed a rule fashioned by the Seventh Circuit in Galloway v. General Motors Service Parts, 78 F.3d 1164 (1996) -- that a plaintiff "may not base [his/her] suit on conduct that occurred outside of the statute of limitations period 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 concluded that Morgan could not proceed to trial on his untimely claims "because [he] believed that he was being discriminated against at the time that all of these acts occurred" such that "it would not be unreasonable to expect that Morgan should have filed an EEOC charge on these acts before the [300-day] limitations period on these claims ran. Morgan appealed the decision and the Ninth Circuit reversed, rejecting the district court's use of the "reasonable knowledge approach" noting that, contrary to the Seventh Circuit's decision in Galloway and precedent from the Fifth Circuit (see Berry v. Board of Supervisors, 715 F.2d 971, 981 (1983)),"this court has never adopted a strict notice requirement as the litmus test for the application of the continuing violation doctrine."

The Ninth Circuit noted that under its previous formulation of the doctrine, a plaintiff may establish a continuing violation by demonstrating either (1) a serial violation, that is, a series of related acts, one or more of which are within the limitations period; or (2) a systemic violation, i.e., a systemic policy or practice of discrimination that operated in part within the limitations period. The Ninth Circuit concluded that there was an unresolved factual issue as to whether Morgan could establish a continuing violation, noting that his allegations "reveal a consistent pattern of similar employment actions over the entire five-year period of employment, perpetrated by the same core group of managers." The Ninth Circuit also concluded, however, that these employment actions could not be deemed "discrete or isolated." Therefore, the Ninth Circuit reversed and remanded to the district court for a new trial. Thereafter, the Supreme Court granted Amtrak's petition for certiorari, 533 U.S. 921 (2001).

The Supreme Court rejected the Ninth Circuit's approach, concluding that, under its prior decisions in Bazemore v. Friday, 478 U.S. 385 (1986) and Delaware State College v. Ricks, 449 U.S. 250 (1980), "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Thus, plaintiffs cannot string together related discrete acts that fall both inside and outside of the statute of limitations period. For what constitutes a "discrete" acts, the Supreme Court made reference to 42 U.S.C. Section 2000e-2, which, according to the Court, "explains in great detail the sorts of actions that qualify as 'unlawful employment practices' and includes among such practices numerous discrete acts" such as failure or refusal to hire, discharge and other acts of discrimination in terms of compensation, conditions and privileges of employment.

While the Supreme Court unanimously rejected the application of the continuing violation doctrine to resurrect otherwise untimely discrete acts, the Court instructed that "[t]he existence of past acts and the employee's prior knowledge of the occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed." As for prior untimely discrete acts, the Court further instructed that, while not themselves actionable, these prior acts can be used as "background evidence" to support a timely claim.

In addition, in Part II of the majority opinion, in which five Justices joined, the Court distinguished discrete acts from hostile work environment claims, recognizing that hostile work environment claims by nature involve repeated acts of conduct and may occur "over a series of days or perhaps years." The majority further recognized that "in direct contrast to discrete acts, a single act of harassment may not be actionable on its own" and that the language of Title VII supports the notion that hostile work environment claims may consist of a series of separate acts that constitute one "unlawful employment practice" and thus may include acts that go beyond the 180-day or 300-day filing period, whichever period may be applicable. In this regard, the majority stated "[i]t does not matter, for purposes of the statute, that some of the component acts of hostile work environment are outside the statutory period; [;] [p]rovided that an act contributing to the claim occurs within the filing period, the entire period of the hostile environment may be considered by a court for the purpose of determining liability."

In a concurring opinion in which Chief Justice Rehnquist and Justices Scalia, Kennedy and Breyer joined, Justice O'Connor -- concurring in part and dissenting in part -- criticized the majority for failing to clarify whether a "discovery rule" was applicable in Title VII cases. While Justice O'Connor recognized that such was the implication of the majority's reservation in its opinion that the equitable doctrines of tolling and estoppel could alter the filing period, she emphasized in her concurrence that "some version of the discovery rule applies to discrete act cases" and, more specifically, that a claim would be precluded if filed more than 180/300 days after the employee had, or should have had, notice of the discriminatory act.

In the dissenting portion of her opinion, in which Chief Justice Rehnquist and Justices Scalia and Kennedy joined, O'Connor disagreed with Part II of the majority opinion, in which Justice Thomas distinguished discrete acts from claims of hostile work environment. Justice O'Connor stated that "[a]lthough a hostile work environment claim is, by its nature, a general atmosphere of discrimination not completely reducible to particular discriminatory acts, each day the worker is exposed to the hostile environment may still be treated as a separate 'occurrence,' and claims based upon some of these occurrences forfeited" if not filed in a timely manner. The dissent acknowledged that the two-year limitation on back pay under 42 U.S.C. Section 2000s-5(b) -- cited by Justice Thomas in support of Part II of the majority opinion-- would alleviate some of the inequity that will result from the majority's ruling, but nevertheless concluded that the majority's decision would unfairly benefit plaintiffs who "sleep on their rights" and then seek damages for long-past occurrences. In addition, the dissent distinguished the damages issue addressed in Section 2000s-5(b), from the issue of liability which is controlled by the EEOC filing periods.

Finally, the dissent pointed out that the majority opinion concerning hostile work environment was inconsistent with the Court's approach under other statutes, such the Racketeer Influenced and Corrupt Organizations Act and the Clayton Act. Moreover, Justice O'Connor noted that, under those statutes, the Court rejected attempts to "bootstrap" untimely claims to subsequent violations, regardless of the plaintiff's knowledge of the earlier violations. O'Connor concluded that "[t]he Court today allows precisely this sort of bootstrapping in the Title VII context; plaintiffs may recover for exposure to a hostile work environment whose time has long passed simply because the hostile environment has continued into the chargefiling period" and submitted that the Ninth Circuit's decision should have been reversed in its entirety.

It is noted that the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan does little to alter the law in the Third Circuit, where the Court of Appeals had previously held that discrimination claims predicated upon discrete employment actions, such as terminations and promotions, are not, by their nature, susceptible to equitable tolling (see Rush v. Scott Specialty Gases, Inc., 113 F.3d 476 (3d Cir. 1997)), but where it has long been recognized that the continuing violation doctrine may be applicable in harassment/hostile work environment cases (see West v. Philadelphia Electric Co., 45 F.3d 744 (3d Cir. 1995)). Nevertheless, the open question left by the majority concerning the applicability of a discovery rule as identified in Justice O'Connor's concurring/dissenting opinion will undoubtedly be litigated by defendant-employers and plaintiff-employees in the Third Circuit and elsewhere until there is a definitive ruling from the Supreme Court in this regard.