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In National Railroad Passenger Corp. v. Morgan, the Supreme Court last year confronted the application of the “continuing violation” doctrine to discrimination claims brought pursuant to Title VII of the Civil Rights Act of 1964. Defense lawyers in employment cases hailed the decision as the death knell of the continuing violation doctrine. The decisions of the lower courts since then, however, have indicated that this epitaph may have been premature. In addressing the viability of the continuing violation doctrine, Justice Clarence Thomas’ opinion for the Court drew a sharp distinction between “discrete acts” of discrimination and hostile work environment claims. The Court found that each discrete act of discrimination — such as termination, failure to promote, denial of transfer, and refusal to hire — constitutes a separate “unlawful employment practice.” Conversely, the Court stated that because “the incidents comprising a hostile work environment are part of one unlawful employment practice . . . [therefore] . . . the employer may be liable for all acts that are part of [the] single claim.” The Supreme Court’s decision clarified the circumstances under which the continuing violation theory could be used. But not surprisingly, the ruling has raised more questions than it answered. Thus, the lower courts have been confronted with several difficult questions. These include: (1) what exactly is a discrete act of discrimination; (2) to what extent may untimely discrete acts be used by the plaintiff as “background” evidence; and (3) what acts properly make up a hostile work environment claim. The answers provided by the lower courts have to date been quite varied. THE MORGAN SCHEME The Morgan Court, in a 5-4 decision, divided discrimination claims into claims involving “discrete acts” and claims alleging a “hostile environment.” The Court then proceeded to establish a different standard for addressing statute of limitations issues under each of these two types of discrimination claims. The Court held that Title VII “precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period.” However, the Court also held that “consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period . . . [was] . . . permissible for the purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time limits.” The Court added that the critical questions were “what constitutes an unlawful employment practice and when has that practice occurred?” Under Morgan, “[t]he answer varies with the practice.” First, the Court found it obvious that “[a] discrete retaliatory or discriminatory act occurred on the day that it happened.” But the Court noted that for claims of discrimination, the statute does not “bar an employee from using the prior acts as background evidence to support a timely claim.” This last sentence has proved to be most problematic. On the one hand, plaintiffs lawyers have argued that while such acts may not be the basis of independent claims of discrimination, they are admissible as evidence in claims that are timely filed. Defense attorneys have obviously argued to the contrary. Nevertheless, the effect of the Court’s imprecise language has been, in many instances, to allow a plaintiff to use what otherwise would be a time-barred act as “background” evidence for other timely filed claims. This practice has substantially undermined the desired impact of Morgan. In the end, this rather robust loophole has allowed plaintiffs lawyers to circumvent the Court’s pronouncement that untimely allegations involving discrete acts of discrimination may not be revived under the continuing violation doctrine — and are therefore time-barred. As opposed to discrete acts of discrimination, in addressing claims alleging a hostile environment, the Court validated the use of the continuing violation doctrine. Thus, virtually any alleged act of discrimination remotely related to the purported hostile environment becomes part of the plaintiffs’ case-in-chief. The Court found that “[h]ostile environment claims are different in kind from discrete acts; their very nature involves repeated conduct. . . . The ‘unlawful employment practice’ therefore cannot be said to occur on any particular day.” Instead, “[i]t occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Under Title VII, “[t]he timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happens. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory period.” Therefore, “[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for purposes of determining liability.” This standard, not surprisingly, has resulted in plaintiffs’ attempting to establish that virtually every act of discrimination creates a hostile environment. Although the Court undoubtedly intended that “discrete acts” such as a firing, or a failure to promote, be a separate claim with an individual accrual of the statute of limitations, imaginative plaintiffs lawyers have now combined evidence of discrete acts with other less specific instances to transform virtually every claim of discrimination into a broad hostile environment claim. LOWER COURT INTERPRETATIONS Since Morgan, the lower federal courts have reached a wide range of results in interpreting the opinion. In defining a “discrete act” under Morgan, the lower courts have been in vast agreement. The Supreme Court specifically referenced in Morgan several types of discriminatory conduct that qualify as discrete acts. Nevertheless, the lower courts have not interpreted this list to be exhaustive. Rather, the courts have looked at each allegation to determine whether it is independently actionable. In Estrada v. Trager (E.D. Pa., 2002), a patient of a physician filed suit under the Americans With Disabilities Act, which is often interpreted in tandem with Title VII. The patient alleged that he was denied a sign language interpreter by the doctor. Estrada contended that Trager’s failure to provide interpreters was an “ongoing policy and practice” and therefore fell within the continuing violation doctrine. The court disagreed. The court stated that the continuing violation doctrine only applies where “the illegal practice complained of materialized or became cognizable over time.” In this case, “Estrada’s rights under the ADA . . . ripened . . . when Dr. Trager refused his requests for an interpreter.” Id. Consequently, “the continuing violation doctrine does not apply.” The court in Kaster v. Safeco Ins. Co. of America (D. Kan. 2002) reached a similar result. There, the plaintiff alleged that he was denied a promotion and terminated, based upon his race, in violation of Title VII. However, the plaintiff failed to file his charge with the Equal Employment Opportunity Commission within 300 days. In an effort to save his federal claim from a limitations bar, the plaintiff attempted to invoke the continuing violation doctrine. Applying Morgan, the District Court stated that a discrete act “occurred” on the day that it “happened.” Moreover, most courts have determined, as the Kaster court stated, that “discrete discriminatory acts are not actionable if time-barred, even when they are related to acts alleged in timely filed charges.” Accordingly, under Morgan, the District Court held that the plaintiff’s claims of discrimination were time-barred. As discussed above, Morgan specifically permitted claimants to pursue hostile work environment claims under the continuing violation theory. The rationale for this ruling is clear — a hostile work environment claim “occurs over a series of days or perhaps years. . . . Such claims are based on the cumulative affect of individual acts,” as Morgan states. However, Morgan did not make the statute of limitations irrelevant. Rather, the Court still requires claimants to establish that some independently discriminatory act occurred within the limitations period. The lower courts have disagreed as to the precise scope of this restriction. Some courts have taken the view that “[o]nly the smallest portion of the ‘practice’ needs to occur within the limitations period for the claim to be timely.” Jensen v. Henderson (8th Cir. 2002) (citing Shields v. Fort James Corp. (11th Cir. 2002)). Other courts, including the 1st Circuit earlier this year in Campbell v. BankBoston, have found that even if “any act” within the limitations period is sufficient under the continuing violation doctrine, the acts must be “independently discriminatory.” A KEY DISTINCTION This distinction between “only the smallest portion” and “independently discriminatory” is crucial. In Jensen, the plaintiff alleged that she was subjected to a hostile work environment. She claimed that beginning on May 4, 1999, several male co-workers began harassing her. Later, on June 4, 1999, the plaintiff contacted the EEOC about the incident. She was sent forms and instructed on how to fill out a complaint. Jensen did not complete the forms. Jensen continued to work for the employer until Nov. 15, 1999, when she went out on medical leave due to depression. Eventually, on Jan. 20, 2000, her attorney filed a formal complaint with the EEOC on her behalf. The District Court rejected the hostile work environment claim because the complaint was not timely filed with the EEOC. The court stated that the last possible date of discrimination was Nov. 15, 1999 — Jensen’s last day of work. The 8th Circuit disagreed and reversed the decision. The court stated that, under established law, “sexual harassment can be a continuing violation even though the employee is not working.” Furthermore, the 8th Circuit stated that the District Court erred in ruling that “Jensen needed to show a discrete act of discrimination within the relevant time period and misconstrued the nature of the continuing violation.” This case illustrates the most expansive possible reading of a viable continuing violation claim under Morgan. Conversely, the court in Staff v. Pall Corp. (S.D.N.Y. 2002), took a far more narrow approach. In Staff, the plaintiff filed suit, under Title VII, claiming that he had been discriminated against, retaliated against, and subjected to a hostile work environment, because of his race. The plaintiff’s hostile work environment claim centered around allegations that he was not given an office or employees to supervise in 1996, lied to by a supervisor in 1998, and accused of insubordination in 1999. The court added that “[a]ll of the other discriminatory acts he alleges, such as delayed promotions, inadequate pay raises, and a discriminatory transfer, were made by different supervisors over a period of years.” The plaintiff’s complaint was filed with the EEOC on Nov. 25, 1998. The court rejected plaintiff’s claims as untimely filed. Each allegation, the court noted, was an independent and discrete act. Furthermore, although the plaintiff makes “the conclusory assertion that they were committed pursuant to a discriminatory policy, he has submitted no evidence of such a policy, and the acts are precisely the types of discrete acts which the Supreme Court and the 2nd Circuit have determined are not subject to the continuing violation doctrine.” The scope and requisite nature of the “act” within the limitations period, necessary to advance a continuing violation theory under Morgan, will be the subject of extensive litigation in future cases. ISSUES TO RESOLVE Morgan also leaves several other unanswered questions. First, the Court did not address whether the continuing violation doctrine applied to “pattern and practice claims.” In Campbell v. National Railroad Passenger Corp. (D.D.C. 2002), the court ruled that “pattern and practice claims” were viable under the continuing violation theory. The court reasoned that “[p]attern and practice claims, like hostile work environment claims, involve repeated conduct a series of separate acts comprising a single unlawful employment practice.” Second, the Court was unclear how to treat a hostile work environment claim that is made up of a series of discrete acts, that would each be independently actionable. The court in Thomas v. Alabama Council of Human Relations Inc., (M.D. Ala., 2003) stated that “[a]n untimely discrete act claim cannot be saved by including it in a lawsuit with a hostile work environment claim.” A third question left after Morgan is whether it applies to claims pursuant to 42 U.S.C. §1981 and related state law claims as well. Last year in Staff, the District Court in New York held that Morgan applied to both Section 1981 civil rights claims and the New York state law claims. The court found that both the Supreme Court and the 2nd Circuit treated Title VII and Section 1981 claims identically. Likewise, the court found that there was no real difference between Title VII and the New York State Human Rights Law (the state analog). Thus, the court held that the “reasoning of Morgan with respect to the continuing violation exception should apply to claims brought” pursuant to Section 1981 and the New York act. Morgan clarifies the permissible application of the “continuing violation doctrine” to discrimination claims under Title VII. The theory does not apply to discrete acts of discrimination but does apply to hostile work environment claims, so long as a portion of the discriminatory conduct falls within the applicable limitations period. What “portion” may be required is an open issue. Furthermore, it is likely that the Morgan holding will apply to Section 1981 claims. Finally, the next wave of post- Morgan case law seems to be developing around the issue of how to treat hostile work environment claims that are comprised of a series of discrete, independently actionable, acts. The lower courts are decidedly split on this question. Stephen W. Robinson is a partner in the McLean, Va., office of McGuireWoods. David L. Greenspan and William S. Consovoy are associates in that office. They all specialize in labor and employment matters.

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