THE SUPREME COURT CONSIDERS THE CONTINUING VIOLATIONS DOCTRINE, IN A DECISION SURE TO AFFECT MANY PARTIES TO HARASSMENT CASES
By JOANNA GROSSMAN
Tuesday, Jan. 29, 2002
This month, the Supreme Court heard arguments in a case interpreting Title VII, the federal employment discrimination statute. The outcome of the case - National Railroad Passenger Corp. (Amtrak) v. Morgan - may turn out to be important for victims of sexual and other forms of harassment. In the case before the Court, the parties are warring over whether incidents of discrimination that occurred outside the statute of limitations can nevertheless form the basis for a suit.
The argument that such acts cannot be sued upon is simple: The statute of limitations, the legal time within which claims may be brought, has expired with respect to these incidents.
The argument that such acts can indeed sometimes be sued upon is more nuanced: If a harasser continues harassing a victim in a pattern of related acts that goes on for years, with many of the harasser's acts falling within the statute of limitations, then it is artificial to exclude the early acts because they fall outside the statute. The acts are all part of the same pattern, most of which is quite recent. This argument constitutes the "continuing violations doctrine."
The Ninth Circuit accepted the continuing violations doctrine, and the Supreme Court should, as well.
The Unhappy Employment History of Abner Morgan
This case arises out of the longstanding, but troubled employment relationship between an African-American electrician named Abner Morgan and Amtrak. According to Morgan, from the time he was hired as an Electrician Helper in 1990 until the time he was fired in 1995, he was subject to a series of discriminatory acts at the hands of his employer.
Morgan alleges that he was paid differently, punished unfairly, denied union representation in disciplinary meetings, and harassed because of his race. Amtrak, however, disputes many of these claims on the merits.
Amtrak moved for summary judgment on some of Morgan's claims based solely on the theory that they are time-barred (that is, too early to come within the relevant statute of limitations). The trial court granted the motion, and dismissed all claims occurring prior to May 3, 1994, 300 days before Morgan filed a complaint with the EEOC.
Then the remaining claims went to trial, but a jury found for Amtrak on all counts. That was not the end of the case, however, for the Ninth Circuit Court of Appeals held that the pre-May 3, 1994 claims should not have been dismissed in their entirety, for they could be actionable as long as they were "sufficiently related to those occurring within the limitations period."
How Filing Charges Under Title VII Works
Title VII of the Civil Rights Act of 1964 is the primary federal statute used to challenge race discrimination in employment. It requires that complainants first seek relief from the Equal Employment Opportunity Commission (EEOC), a federal agency charged with the responsibility of administering the nation's employment laws. Thus, before any potential plaintiff can file a lawsuit, he must first file a charge with the EEOC.
That charge must be filed within either 180 or 300 days of when the acts of discrimination are alleged to have occurred. (The time period differs depending on whether the state where the discrimination is alleged has an agency that shares the work of processing complaints with the EEOC; the parties in the Morgan case agree that the relevant period is 300 days.)
The EEOC then has the opportunity to review the case, investigate the claims, and decide whether the case has any merit. If it does, the EEOC will sometimes sue on the employee's behalf - or even, if the complaint reveals widespread illegal conduct, on the behalf of a class of employees. No matter what the EEOC's decision may be, the complainant at some point earns the right to bring a lawsuit in court.
The Basics of the Continuing Violations Doctrine
The "continuing violations" question that has plagued many courts in the last decade, and produced a federal circuit split, is this: When Title VII plaintiffs do ultimately make it past the EEOC, should they be able to recover for discriminatory acts that occurred outside of the relevant limitations period?
An ABA treatise variously describes the existing caselaw on this issue as "muddled" and "defy[ing] easy description or convenient characterization" - a strong sign that clarification is in order. The treatise also describes the Supreme Court's own prior cases as "impossible to reconcile." A brief review of the cases proves the point.
Courts agree that an isolated act of discrimination that occurs outside of the charge-filing period, is untimely and does not provide a basis for suit. They also generally agree that the doctrine of "equitable tolling" applies. (That doctrine can extend the limitations period for fairness reasons - for example, if the employer has made affirmative representations to the victim-employee that lead the employee to miss the charge-filing deadline, or if the employee mistakenly filed the charge with the wrong federal agency.)
But suppose there is no basis for equitable tolling, but there are multiple, related discriminatory acts, some of which fall within the relevant time period--a so-called serial violation? Courts disagree on whether suit can be brought upon all the acts, or only those that fall within the time period. This split turns on a disagreement about when an unlawful employment practice "occurs."
When Does An Unlawful Employment Practice "Occur"?
Some circuits, including the Ninth, have taken the position that an unlawful practice "occurs" when the last act in a series of "sufficiently-related" acts takes place. Take, for example, a case of hostile environment harassment, which, by its very nature, usually takes place over a period of time and includes multiple acts. According to the Ninth Circuit, the harassment plaintiff could sue at any time until the date of the last act of harassment plus the limitations period.
However, this theory is not limited to cases of serial harassment. It could also be used when an employee is repeatedly denied a promotion on the basis of race - both in the past and more recently, within the statute of limitations.
Four federal circuits have adopted a stricter, three-factor test. Like the Ninth Circuit, these Circuits ask whether the alleged acts involve the same type of discrimination as the later acts that fall within the proper time period. But they also ask, second, whether they can fairly be described as "recurring." (If not, the plaintiff cannot sue upon the earlier acts). Finally, the third prong of their test asks whether the earlier acts were sufficiently "permanent" to trigger the employee's awareness of and duty to challenge them. (If so, the plaintiff cannot sue upon the earlier acts, on the theory that she should have sued upon them earlier.)
Other circuits have adopted a "notice accrual" approach. Under this approach, a plaintiff may only sue for acts outside of the limitations period if it would have been unreasonable to expect the plaintiff to file a charge earlier. That might happen if early discrimination was secret (a racist comment in a review the employee never was allowed to read, for example). It might also happen if the plaintiff reasonably thought that, early on in course of harassment, she could not yet sue because a hostile environment had not yet quite been created (for example, an assistant might endure very sporadic "joking" harassing comments from a supervisor that later became far more common and more demeaning).
Meanwhile, other federal courts permit prior acts to be used as background evidence, so that a jury will hear about them, but do not permit them to be used by the jury in calculating damages.
In the case currently before the Court, the plaintiff's position (not surprisingly) is that the Ninth Circuit got it right: Prior acts can be the basis of an award of damages, as long as they are sufficiently related to at least one act occurring during the charge-filing period. Meanwhile, the employer argued for the notice accrual approach described above.
The United States went even further in supporting the employer's position--arguing, apparently, that there are simply no circumstances under which an employee ought to be able to recover for discriminatory acts occurring outside of the charge-filing period. This Draconian position differs from that of the EEOC - an executive branch federal agency - and thus puts President Bush's Solicitor General in direct conflict with the President's own EEOC head.
A Difficult-to-Predict Outcome
It's hard to tell what the Supreme Court will do with this case. They have the opportunity to issue a broad ruling that could clean up the entire confusing mess--or simply add another irreconcilable piece.
What should happen is that the Ninth Circuit's position ought to be upheld. Employers who behave in a consistently discriminatory manner ought to be held accountable for that conduct. One purpose of statutes of limitations is to give offenders a sense of finality and protection from suit or prosecution for acts in their past. But employers who engage in "continuing violations" hardly deserve that kind of finality or protection.
Moreover, there are already limits in the law that effectively prevent most employers from being faced with a damage award based upon discrimination that took place long ago. For example, Title VII limits awards of back pay to two years, no matter how long the discrimination has been occurring.
In addition, in sexual harassment law, employer liability is inherently limited by the affirmative defense, which protects employers when they have taken adequate measures to prevent and correct harassment and the victim has taken too long to complain. Thus a "good" employer - one that properly adopted an effective harassment policy and complaint system - will be exonerated in a case where the victim waits more than a few months to complain.
Furthermore, the only employer protected by the extreme position advocated for by the United States in Morgan is the "bad" employer who sits back and does nothing while harassment recurs, and then objects to being held liable for the more dated acts.
Such an employer does not deserve statute of limitations protection, for it could have addressed the harassment itself long ago; having allowed a lengthy course of harassment to occur, the "bad" employer should not later be heard to complain that the course of harassment alleged is too lengthy.