Current or former employees seeking to litigate discrimination claims must first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or similar state agency within 300 days (or, in some cases, 180 days) of the alleged discriminatory event. Subject to certain exceptions based on principles of equity, the failure to file a timely charge of discrimination will spell the doom of a discrimination lawsuit. This analysis can be complicated, however, when multiple acts of discrimination over a period of time are alleged. Plaintiffs who have filed a belated charge of discrimination will often contend that events outside the 300 or 180 day period relate to events within this period, invoking the “continuing violation” doctrine in an effort to avoid dismissal of all or a part of the alleged claims. The U.S. Supreme Court addressed the applicability and scope of the “continuing violations” doctrine in National Railroad Passenger Corp. v. Morgan, 112 S. Ct. 2061 (2002).

The Court’s first principal holding, decided by a 9-0 vote, was that 42 U.S.C. § 2000e-5(e)(1) “precludes recovery for discrete acts of discrimination or retaliation that occur outside the [relevant] statutory time period” for filing charges of discrimination. Morgan, 112 S. Ct. at 2068. (Justice O’Connor, joined by Chief Justice Rehnquist and Justice Breyer, wrote a separate concurrence emphasizing that they would have extended the Court’s holding in an even more pro-employer direction, such that “the chargefiling 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.” Id. at 2078 (emphasis added)). The remaining six justices, however, concluded that Morgan was not the proper case to decide “whether the time begins to run when the injury occurs as opposed to when the injury reasonably should have been discovered.” Id. at 2073.

The Court’s second principal holding resulted in a 5-4 divided court, with the majority representing an unusual alignment of Justice Thomas and Justices Stevens, Souter, Ginsburg and Breyer. The Court held that “consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period [defined in 42 U.S.C. § 2000e-5(e)], is permissible for purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time period.” Id. at 2068 (emphasis added).

Finally, the Court also held that the “application of equitable doctrines . . . may either limit or toll the time period within which an employee must file a charge.” Id.

Facts and Procedural Background

On February 27, 1995, Abner J. Morgan, Jr., a black man, filed a charge of discrimination and retaliation with the EEOC and the California Department of Fair Employment and Housing (CDFEH) against the National Railroad Passenger Corporation (Amtrak). Morgan alleged that during the period he worked at Amtrak he was consistently harassed and disciplined more harshly than other employees on account of his race. Id. He alleged that the discrimination commenced when Amtrak hired him in August 1990, and subsequently included “termination for refusing to follow orders, Amtrak’s refusal to allow him to participate in an apprenticeship program, numerous ‘written counselings’ for absenteeism, as well as the use of racial epithets against him by his managers.” Id. at 2068 & n. 1.

The district court granted partial summary judgment to Amtrak, relying on an approach set out by the Seventh Circuit in Galloway v. General Motors Service Parts Operations, 78 F.3d 1164 (7th Cir. 1996). The Galloway court concluded that a “‘plaintiff may not base [the] suit on 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.’” Id. (citing Galloway at 1167).

Adopting that approach, the district court in Morgan held that Amtrak “could not be liable for conduct occurring before May 3, 1994, because that conduct fell outside of the 300-day filing period.” Id.

The Ninth Circuit reversed. It relied on its previous articulation of the continuing violation doctrine, which “allows courts to consider conduct that would ordinarily be time barred ‘as long as the untimely incidents represent an ongoing unlawful employment practice.’” Id. at 2069 (citations omitted).

The Supreme Court accepted the case to consider whether, and under what circumstances, a Title VII plaintiff may sue regarding events that fall outside the statutory period for filing a charge with the EEOC — either 180 or 300 days “after the unlawful employment practice occurred.” Id. at 2068 (citing 42 U.S.C. § 2000e-5(e)(1)). The Court examined two critical questions — (1) What constitutes an unlawful employment practice? and (2) When has that practice occurred? — in light of both discrete retaliatory or discriminatory acts (terminations, denial of promotion, etc.) and hostile work environment claims of discrimination. Id. at 2070.

Discrete Claims of Discrimination

The Court straightforwardly held that a “discrete retaliatory or discriminatory act ‘occurred’ on the date that it ‘happened.’” Id. A “party, therefore, must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it.” Id. at 2071.

Morgan had argued that the statutory language of 42 U.S.C. § 2000e-5(e)(1) requires the filing of a charge within a specified number of days after an “unlawful employment practice,” and that “practice” describes “an ongoing violation that can endure or recur over a period of time.” Id. The Court rejected this argument based on a plain reading of the statute, noting that 42 U.S.C. § 2000e-2 sets out numerous discrete acts that constitute “unlawful employment practices,” including failing or refusing “to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin... .” The Court easily concluded that there “is simply no indication that the term ‘practice’ converts related discrete acts into a single unlawful practice for the purposes of timely filing.” Id.

The Court cited several principles gleaned from the case law in support of its holding:

“[Discrete] [d]iscriminatory acts are not actionable if time barred, even when they are related to [other discrete] acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act;”

42 U.S.C. § 2000e-5(e)(1) does not “bar an employee from using the prior acts as background evidence in support of a timely claim;” and

The “time period for filing a charge is subject to equitable doctrines such as tolling or estoppel.”

Id. at 2072 (emphasis added).

Applying its holding to the facts of Morgan, the Court concluded that the Ninth Circuit erred when it applied “the continuing violations doctrine to what [the Ninth Circuit] termed ‘serial violations’” and held “that so long as one act falls within the charge filing period, discriminatory and retaliatory acts that are plausibly or sufficiently related to that act may also be considered for the purposes of liability.” Id. at 2073. Accordingly, the Court reversed that portion of the Ninth Circuit’s decision.

Hostile Work Environment Claims of Discrimination

The Court began its continuing violations theory analysis of hostile work environment claims by making four preliminary observations: (1) the very nature of such claims is that they involve “repeated conduct;” (2) therefore an unlawful employment practice involving such claims “cannot be said to occur on any particular day;” (3) rather, they occur “over a series of days or perhaps years;” and (4) “in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Id.

Next, the Court noted that to determine whether an actionable hostile work environment claim even exists it is necessary to “look to ‘all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Id. at 2074 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). The Court then reasoned that a “hostile workenvironment claim is comprised of (sic) a series of separate acts that collectively constitute one ‘unlawful employment practice.’” Id. (citing 42 U.S.C. § 2000e-5(e)(1)). In sum, the majority held:

It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period may be considered by a court for the purposes of determining liability.

Id. (emphasis added). Stated slightly differently, the Court re-emphasized its holding this way:

Given, therefore, that incidents comprising a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim. In order for the charge to be timely, the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment.

Id. at 2075 (emphasis added).

The Court also clarified that an act falling within the statutory time period for filing “need not . . . be the last act.” Id. at 2074. Rather, as “long as the employer has engaged in enough activity to make out an actionable hostile environment claim, an unlawful employment practice has ‘occurred,’ even if it is still occurring.” Id.

By way of example, the Court explained that in a scenario where acts contributing to a hostile environment occur on days 1-100 and on day 401 — but not in between on days 101-400 — a charge filed in connection with the day 401 incident could, nevertheless, still pull in the acts that occurred on days 1-100 for liability purposes “so long as each act is part of the whole,” since a hostile work environment constitutes one “‘unlawful employment practice.’” Id. at 2075. On the other hand, the Court made clear that:

[I]f an act on day 401 had no relation to the acts between days 1-100, or for some other reason, such as certain intervening action by the employer, was no longer part of the same hostile work environment claim, then the employee can not recover for the previous acts, at least not by reference to the day 401 act.

Id. (emphasis added).

Applying this analysis, the Court affirmed the Ninth Circuit’s reversal of the District Court’s dismissal of some aspects of Morgan’s hostile work environment claim. It did so because it found that Morgan’s allegations were related and at least some occurred within the 300-day charge filing period. Id. at 2076.

To avoid the prospect of hopelessly untimely claims, the Court also carved out certain equitable defenses when a “plaintiff unreasonably delays filing a charge.” Id. at 2076. First, the majority noted that “the filing period is not a jurisdictional prerequisite to filing a Title VII suit . . . [thus] . . . it is a requirement subject to waiver, estoppel, and equitable tolling ‘when equity so requires.’” Id. Second, the Court held an employer “may raise a laches defense, which bars a plaintiff from maintaining a suit if he unreasonably delays in filing a suit and as a result harms the defendant.” Id. This affirmative defense requires proof of two elements: (a) “lack of diligence by the party against whom the defense is asserted,” and (b) “prejudice to the party asserting the defense.” Id. The Court left for another day, however, “‘how — and how much — prejudice must be shown’ and ‘what consequences follow if laches is established.’” Id. (citation omitted).

Practice Pointers

Several practical tips for employers emerge from the Morgan decision:

  • First, with regards to discrete claims of alleged discrimination (failure to hire, terminations, denial of promotion, compensation decisions, etc.), employers need to be diligent about conveying in writing, and documenting in their records, the precise date that the applicant or employee (and potential future Title VII plaintiff) received notice of an adverse employment decision. Such careful documentation will help ensure a factually indisputable date on which the filing period began, thus heightening the likelihood that a statute of limitations defense will succeed.
  • In hostile work environment situations, employers should be thorough in documenting all internal harassment complaints by employees. The nature of the harassment, the identity of the alleged harasser(s), the dates, where it occurred and other pertinent facts should all be gathered. This will help generate a record that may later enable the employer to argue successfully that certain acts outside the time period for a timely charge “had no relation to the acts” for which the charge was timely.
  • Finally, employers need to be cognizant of the equitable doctrines, including the affirmative defense of laches, that should be considered in the defense of any hostile work environment case where the plaintiff has unduly delayed commencing suit.