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.
