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Continuing Violation Theory Extended

In order to file a discrimination lawsuit under Title VII of the Civil Rights Act of 1964, a plaintiff must first file a timely administrative charge with the Equal Employment Opportunity Commission (EEOC), or a state or local anti-discrimination agency. To be timely, the charge against a Maryland employer must be filed within 300 days of the alleged discriminatory conduct. In most instances, an employee who files an untimely administrative charge will be barred from filing a lawsuit under Title VII regarding conduct that occurred more than 300 days before the administrative charge. One instance where the 300 day time limit does not apply is where the charge involves a "continuing violation."

In a decision issued June 10, 2002, in National Railroad Passenger Corp. ("Amtrak") v. Morgan, 122 S. Ct. 2061 (2002), the United States Supreme Court substantially expanded the scope of the "continuing violation" doctrine in cases involving a claim of hostile work environment.


In 1996, Abner Morgan filed a charge with the EEOC alleging that he suffered racial discrimination, retaliation for complaining of the discrimination, and a hostile work environment. Morgan asserted that the acts of discrimination started in 1990 and continued for 5 years. At trial, a federal district court granted partial summary judgment in Amtrak's favor, "holding that the company could not be liable for conduct occurring before May 3, 1994, because that conduct fell outside of the 300-day filing period." On appeal, the Ninth Circuit Court of Appeals reversed the district court's decision, holding that discriminatory acts may be strung together to form a continuing violation that permits a plaintiff to sue for actions that occurred outside of the 300 day limitations period. The Ninth Circuit stated, "a plaintiff may sue on claims that would ordinarily be time barred so long as they either are sufficiently related to incidents that fall within the statutory period or are part of a systematic policy or practice of discrimination that took place, at least in part, within the limitations period." Amtrak appealed the Ninth Circuit's decision to the United States Supreme Court.

The Supreme Court's Holding:

The Supreme Court held that "a Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his charge within the appropriate 180 or 300-day period, but a charge alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. The Court noted that discrete discriminatory acts, such as "termination, failure to promote, denial of transfer, or refusal to hire, are easy to identify," and that "each incident constitutes a separate actionable unlawful employment practice." For that reason, the Court stated that in cases involving a discrete discriminatory act, a "strict adherence to Title VII's timely filing requirements is the best guarantee of evenhanded administration of the law." However, in regards to a hostile work environment, i.e., frequent discriminating or harassing conduct, the majority of the Court reasoned that this claim cannot be considered a discrete discriminatory act because the "very nature of the claim involves repeated conduct." Accordingly, for hostile environment claims, the Court found that as long as one act occurs within the appropriate statutory period, a court may consider all other acts that occur outside of the statutory filing period. While the Court concluded that an employer may raise a laches defense where a plaintiff unreasonably delays filing his or her claim, that defense is only available where the employer can show it was prejudiced by the delay.


The Supreme Court's holding expressly countenances the application of the "continuing violation" theory to hostile environment claims and is likely to encourage plaintiffs and their counsel to more aggressively assert otherwise "stale" claims. To effectively counter such claims, employers need to ensure that their harassment policies include "time is of the essence" language requiring employees to raise issues of workplace harassment within specified timeframes. Where an employer is able to show that an employee failed to complain about an alleged incident of hostile environment harassment in a timely manner, the employer will be in a position to assert that the employee acted "unreasonably" and claim the protection of the affirmative defense set forth in the Supreme Court's sexual harassment trilogy, i.e., Faragher, Oncale and Ellerth.