The Continuing Violations Doctrine Post-morgan

• Publication year: 2003
• Pages: 57

32 Colo.Law. 57 Colorado Lawyer 2003.

2003, February, Pg. 57. The Continuing Violations Doctrine Post-Morgan

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57

Vol. 32, No. 2, Pg. 57

The Colorado Lawyer
February 2003
Vol. 32, No. 2 [Page 57]

Specialty Law Columns
Labor and Employment Review
The Continuing Violations Doctrine Post-Morgan
by Susan Strebel Sperber, Craig R. Welling
C 2003 Susan Strebel Sperber and Craig R. Welling

This column is sponsored by the CBA Labor Law Forum Committee to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado

Column Editor

John M. Husband of Holland & Hart LLP in Denver - (303) 295-8228

About The Authors

This month's article was written by Susan Strebel Sperber and Craig R. Welling, Denver, a partner and associate, respectively, of Rothgerber, Johnson & Lyons LLP. The authors may be reached at (303) 623-9000; ssperber@rothgerber.com or cwelling@rothgerber.com.

The U.S. Supreme Court recently clarified the reach of the continuing violations doctrine to save otherwise untimely charges of employment discrimination. This article examines the impact the Morgan decision will have on Title VII plaintiffs and employers.

For over two decades, plaintiffs in employment discrimination cases arising under Title VII1 have relied on the "continuing violations doctrine" to save claims that otherwise would be time-barred.2 The U.S. Supreme Court recently weighed in on the continuing violations doctrine in National Railroad Passenger Corporation v. Morgan.3 In that case, the Court clarified and dramatically shifted the landscape surrounding the filing of a timely charge of discrimination under Title VII.

This article provides background for the continuing violations doctrine and examines how the doctrine has been framed by the circuit courts of appeal. It discusses the Supreme Court decision in Morgan and compares the treatment of claims based on discrete acts of discrimination with claims of hostile work environment. Finally, the article focuses on the impact on employers in the wake of the Morgan decision.

Continuing Violations Doctrine Pre-Morgan

The continuing violations doctrine arose as a means of avoiding the Title VII requirement that a claimant file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within a specified time frame. To preserve the right to ultimately file suit under Title VII following an "alleged unlawful employment practice," the claimant must file a claim within 300 days - or within 180 days in states lacking their own fair-employment agencies.4 The continuing violations doctrine generally rests on the assumption that if an alleged discrimination is part of a "continuing pattern of discrimination," the plaintiff should be allowed to bring the claim based on the entire pattern of conduct, not just those acts occurring within the filing period.5

The continuing violations doctrine developed simultaneously in various circuit courts of appeal. As such, it has been characterized as "inconsistent and confusing."6 Among the appellate courts, three different formulations developed for determining when the doctrine should be invoked. The Tenth Circuit, along with the Third, Fifth, Sixth, and Eleventh Circuits, applied a three-factor test; the most important factor concerned whether "the nature of the violations should trigger an employee's awareness of the need to assert her rights."7 Another formulation, crafted in the Seventh Circuit, applied the continuing violations doctrine to cases where

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.8

The formulation most friendly to plaintiffs was the "sufficiently related" test applied by the Ninth Circuit.9 Under the Ninth Circuit formulation, the continuing violations doctrine saved claims as long as the time-barred conduct was sufficiently related to the non-time-barred conduct, without regard to whether the plaintiff slept on his or her rights by delaying the filing of a claim.

The Morgan Case

Abner Morgan, Jr., an African-American man living in Oakland, California, was hired by Amtrak in 1990. He alleges that he was routinely subjected to race-based discrimination from the day he was hired through the termination of his employment in 1995.10 His allegations of discrimination include: being hired for a lower paying position than less qualified white colleagues; denial of training opportunities; being instructed to perform work outside his job description; and subjection to racially motivated disciplinary action, verbal abuse, and disparate treatment under company vacation and sick leave policies.11

Morgan filed a charge of discrimination with EEOC and the California Department of Fair Employment and Housing on February 27, 1995. The majority of the alleged discriminatory conduct occurred more than 300 days before Morgan filed his claim. The exception was a chain of events that began in December 1994, when a co-worker leveled an unsubstantiated allegation that Morgan had threatened the...