New Jersey Supreme Court Adopts United States Supreme Court's Framework for Continuing Violation Doctrine
The Employment and Labor Law Alert
September 4, 2002
In applying and construing the New Jersey Law Against Discrimination (“LAD”), New Jersey courts have historically looked for guidance to federal law under Title VII. The New Jersey Supreme Court’s recent construction of the “continuing violation” doctrine is no exception. In Sheperd v. Hunterdon Developmental Center, _____ N.J. _____ (2002), the New Jersey Supreme Court considered hostile work environment claims in the context of the “continuing violation” doctrine, which allows plaintiffs to assert claims for acts which are part of a pattern of conduct, even when the acts occurred before the applicable statutory limitations period. In its analysis, the Court applied the United States Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, _____ U.S. _____, No. 001614, which was discussed in the June 28, 2002 Gibbons Employment and Labor Law Alert.
The Sheperd plaintiffs alleged they had been subjected to a hostile work environment by virtue of being targeted for strict enforcement of workplace rules after their support of a lawsuit against the defendants, in which co-workers alleged race discrimination. They also alleged retaliation and constructive discharge. Although all of the plaintiffs’ claims did not occur within the statutory limitations period – 2 years prior to the filing of their claims – the Court found that the hostile work environment allegations fell directly within the scope of the “continuing violation” doctrine and so were not barred by the statute of limitations. Specifically, the plaintiffs alleged that commencing in the 1980’s and continuing into April of 1995, they had been the victims of retaliation for having supported co-workers’ complaints about race discrimination. The plaintiffs did not, however, file their complaint until February, 1997.
The Court noted that the “continuing violation” doctrine has been recognized in New Jersey since at least 1999, when it observed that “the cumulative effect of a series of discriminatory or harassing events” can constitute a “single cause of action” for which “the statute of limitations does not begin to run until the wrongful action ceases.” See Wilson v. Wal-Mart Stores, 158 N.J. 263, 272-74 (1999). The application of the doctrine relies upon differentiating between discrete discriminatory acts and hostile work environment claims, a distinction which was considered in depth in National Railroad Passenger Corp. v. Morgan. In Morgan, the United States Supreme Court identified discrete acts as separately actionable, citing as examples acts that can be isolated as occurring on the day they happen: termination, denials of promotions or transfers, or even refusal to hire. In contrast, the Morgan Court asserted that hostile work environment conduct can occur over days or years, and, taken in isolation, individual acts may not constitute actionable claims. The Sheperd Court found the Morgan analysis similar to its own continuing violation construct as set forth in Wilson, and so specifically adopted the Morgan framework as applicable to LAD claims under the continuing violation doctrine.
The analysis rests on two questions: “have plaintiffs alleged one or more discrete acts of discriminatory conduct by defendants?” or “have plaintiffs alleged a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment?” Only an affirmative answer to the latter question permits a continuing violation claim, with the cause of action accruing on the date when the last act occurred, and incorporating all prior acts, even those falling outside the statutory limitations period.
It is also important to note that the Court in Shepherd rejected the argument that the statute of limitations begins to run as soon as the plaintiff realizes that he or she is the victim of a hostile work environment. So long as the series of discriminatory acts continues, a plaintiff is not required to bring suit until 2 years after the discriminatory conduct ceases.
Also of interest, while the Court in Shepherd permitted the plaintiffs to pursue their hostile work environment claim, it dismissed a “constructive discharge” claim asserted by one of the plaintiffs even though the allged constructive discharge occurred less than 2 years before suit was filed. The Court concluded that the facts alleged did not meet the stringent standard for such a claim, namely that the plaintiff resigned because the employer had created a workplace environment so “intolerable” because of discriminatory conditions that a reasonable person would have resigned. The Court reasoned that while this plaintiff’s evidence of a hostile work environment was minimally sufficient to survive a motion to dismiss, it was insufficient under the “intolerable” standard for constructive discharge claims. Three of the Court’s seven Justices dissented from this portion of the Court’s opinion on the grounds that the plaintiff had set forth sufficient evidence from which a jury could find “intolerable” working conditions.
The Shepherd Court’s application of the continuing violation doctrine should alert employers to the possibility of claims reaching far back into an employee’s history. As memories fade with time and facts and details become lost with employee turnover, employers should acknowledge the possibility of viable claims that would otherwise be time-lapsed and improve recordkeeping and documentation in the event of claims spanning lengthy time periods. Similarly, employers should be alert to situations that can potentially create a “continuing violation” pattern and should be prepared to address such situations as they arise.