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In Caggiano v. Fontoura, et al. 2002 N.J. Super. LEXIS 367, (App. Div.), the New Jersey Appellate Division recently broadened the continuing-violation concept, expanding the potential for liability of those accused of engaging in harassing conduct. Statute of limitations issues regarding hostile work environment claims brought under the New Jersey Law Against Discrimination have long been a problematic area for New Jersey courts due to the nature of such claims, which frequently arise out of repeated incidents that occur over time. A hostile work environment claim under the LAD is subject to a two-year statute of limitations. However, New Jersey courts frequently are faced with situations where much of, but not all of, the harassing conduct occurred outside the two-year period. See, for example, Wilson v. Wal-Mart Stores, 158 N.J. 263 (1999). To deal with such situations, New Jersey courts have adopted the continuing-violation concept, which is analogous to the continuing-tort doctrine. The continuing-violation concept permits recovery for the entire pattern of conduct constituting the hostile work environment claim even though some of the conduct occurred outside the statute of limitations period. In Caggiano, the Appellate Division held that a hostile work environment claim is timely so long as at least one of a series of acts, which together constituted the hostile work environment, fell within the statutory period. As a corollary to the bright-line rule created, the court held that “the entire hostile work environment encompasses a single unlawful practice.” Further, to facilitate a plaintiff’s ability to prove a hostile environment claim, the court held that an alleged harassing employee’s “mere presence” in the working environment within the limitations period may suffice to support a continuing violation based upon prior conduct, even though the plaintiff claimed no specific harassment that fell within the limitations period. SINGLE UNLAWFUL PRACTICE In Caggiano, plaintiff Karen Caggiano, a female Essex County Sheriff’s officer, brought an action against the Essex County sheriff, county of Essex, state of New Jersey and two sheriff’s officers. She claimed to have been subjected to a series of vulgar and offensive verbal remarks by her peers and supervisors relating to her gender and sexual orientation. Additionally, she claimed to have been subjected to retaliation by state and county defendants because she was forced to write a report regarding her allegations. Further, she claimed that the defendants were negligent for failing to have in place well-publicized anti-discrimination and anti-harassment policies. All but the very last act of harassment took place outside the two-year statute of limitations period. Only the last alleged act of harassment — a comment by the sheriff at a sexual harassment training class to “remember, guys, harass is one word” — took place within the two-year period. Thus, the issue before the court was whether the complaint should be deemed timely filed as a continuing violation. As noted earlier, the court held that as long as at least one of the acts fell within the statutory period, the entire action was timely as a single unlawful employment practice. In so holding, the Appellate Division relied heavily on the recent U.S. Supreme Court decision of National Railroad Passenger Corp. v. Abner Morgan, Jr., 122 S. Ct. 2061 (2002). In National Railroad, a black male filed suit under Title VII of the Civil Rights Act of 1964, and 42 U.S.C. 2000e, et seq., alleging that he had been subjected to discrete discriminatory and retaliatory acts, and experienced a racially hostile work environment throughout his employment. As in Caggiano, some of the alleged harassing conduct took place outside the statute of limitations period. The Court held that a hostile work environment claim under Title VII “will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.” In so holding, Justice Clarence Thomas determined:
hostile 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. It 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.

Thus, the Court found that a hostile work environment claim is comprised of a series of separate acts that collectively constitute one “unlawful employment practice.” As noted by the court in Caggiano, this ruling clarified what had been a very muddled area in employment discrimination law. Accordingly, in Caggiano, the court adopted the bright-line rule that as long as at least one of a series of acts fell within the statutory period, the action was timely. Thus, the Appellate Division found that if a jury concluded that Caggiano was subjected to the hostile work environment by an act that occurred within the statute of limitations period, the hostile environment claim would be timely with respect to all defendants. MERE PRESENCE IS ENOUGH The New Jersey Supreme Court has had only one occasion to address the continuing-violations concept in the context of an LAD case. In Wilson, Nancy Wilson sought redress for sexual harassment and for age and sex discrimination in the workplace under the LAD against Wal-Mart. The court held that when an individual is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations period does not begin to run until the wrongful action ceases. Thus, if Wilson could demonstrate that the discriminatory conduct represents a continuum of harassment that began while the harasser and plaintiff were employed with Wal-Mart, her claim would not be extinguished. In so holding, the Court cited with approval Bustamento v. Tucker, 607 So. 2d. 532 (La. 1992), which noted:

[H]ostile work environment claims are often based on continuing violations because “in a hostile environment, an individual feels constantly threatened even in the absence of constant harassment … A logical corollary is that once a pattern of harassment has created a psychologically offensive work environment, the status quo of such continuous wrongful conduct can be based on the harasser’s mere presence.

Noting the above language from Wilson, the Caggiano court examined whether the plaintiff’s claims against the two individual officers were time barred since they did not engage in any allegedly harassing conduct within the two-year statute of limitations period. The court noted that it was disturbing to think that individuals could avoid liability while the employer could not and, thus, found that if the alleged harassers were employed within the two-year period, their mere presence may be enough to support a continuing violation. SUBSTANTIAL IMPACT Caggiano bolsters plaintiffs’ hostile work environment claims and extends the liability exposure of both employers and employees who are accused of engaging in harassing conduct. For employers, the ruling that a claim is timely as long as one in a series of acts falls within the statute of limitations period has broad ramifications. Based on this holding, it is not far-fetched to imagine a scenario where an employer could be found liable for conduct that occurred as far back as 20 years ago if the last allegedly harassing act took place within the last two years. The Caggiano decision should encourage employers, if they have not already done so, to be more proactive in addressing harassing conduct in the workplace. For employees who are accused of engaging in harassing conduct, the ruling that this mere presence at work preserves the hostile work environment claim also has very broad ramifications. This opinion puts employees on notice that even if the alleged conduct took place outside the limitations period, they could still be held liable for their actions if they continue to be employed at the place where the alleged harassment took place or if one of their colleagues continues the harassment. Caggiano undoubtedly will make it more difficult to dismiss hostile work environment claims as untimely. Thus, the expansion of the continuing-violation concept is clearly a contraction of the defenses available under New Jersey employment discrimination law. Vito A. Gagliardi Jr.,, a principal at Porzio, Bromberg & Newman, www.pbnlaw.com, of Morristown, N.J., chairs the firm’s employment law department. Frank A. Custode is an associate and a member of the employment law department.

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