What Hath Morgan Wrought?
The New Law of Continuing Violations

 By Michael Starr and Adam J. Heft

 

The notion of a �continuing violation� allows employment discrimination claims that would otherwise be untimely to proceed to trial.  That doctrine was given a major new interpretation in June 2002 by the Supreme Court in National Railroad Passenger Corp. v. Morgan.[i]  At first glance, the Morgan decision appears to give a boost to employers in its refusal to apply the continuing violation theory to claims based upon what the Court called �discrete acts� of discrimination or retaliation.  But proving the maxim that the hand that giveth, taketh away, the Court applied the doctrine to hostile work-environment claims, and did so in ways that may expand an employer�s exposure to such claims in some unexpected ways.

At the heart of Morgan is the requirement of Title VII that charges of discrimination must be filed with the Equal Employment Opportunity Commission (EEOC) within 300 days of the occurrence of the alleged discriminatory practice (or within 180 days if the wrongdoing takes place in states that do not have their own fair-employment agencies).[ii]  Filing a timely charge is a prerequisite to subsequent lawsuit, unless excused by waiver, equitable tolling or the like.  Morgan came to the Court on the issue of whether employers can be liable for unlawful employment practices occurring beyond the charge-filing period.  It held that they could not be liable under the continuing-violation doctrine for discrete acts of discrimination or retaliation, but could for workplace harassment claims even without reference to continuing violations given the peculiar nature of such phenomena.

The Supreme Court�s decision, written by Justice Thomas, who had served as EEOC Chair under President Reagan, characterized lower-court decisions on the doctrine of continuing violations as providing �reasonable, albeit divergent solutions.�[iii]  Lower courts themselves had been less charitable, describing the pre-existing state of the law as �complex and diffuse� and �inconsistent and confusing� � and rightly so.[iv]  The Supreme Court has now re-entered this arena and redefined concepts in a way that left such law as was emerging in further disarray.

 

A.                  �Discrete� Acts Do Not Continuing Violation Make

Abner Morgan, an African-American working for Amtrak, claimed that he was discriminated against on account of his race literally from his first day on the job, almost five years before he ever filed a formal charge of illegality.  Morgan was hired as an electrician helper, though by previous training and experience he was, he said, qualified to be a full-fledged electrician; no white employee, even those less qualified, was hired to the helper�s position.  Some months later, Morgan was fired for a rule violation and later reinstated with a 10-day suspension, the sternest discipline that had been imposed by Amtrak for that particular infraction.

After numerous episodes of warnings and denials of training, Morgan complained of discrimination internally to Amtrak.  Two months later, he was reprimanded for being argumentative and threatening.  All these events, however, occurred more than 300 days before February 27, 1995, when Morgan, while on disciplinary suspension, filed a discrimination charge with the EEOC.  Only days later, Morgan�s suspension became a discharge.

Hewing closely to the statutory language that EEOC charges must be filed within 180 or 300 days �after the alleged unlawful employment practice occurred,� the Court held that �[a] discrete retaliatory or discriminatory act �occurred� on the day that it �happened.��[v]  In so holding, the Court rejected the Ninth Circuit�s (and EEOC�s) view that seemingly discrete acts can, if �sufficiently� related, be converted into a �serial� continuing violation or, in a sense, a unitary illegal employment practice.[vi]  As the Court explained, �Each discrete discriminatory act starts a new clock for filing charges alleging that act.�[vii] 

The Supreme Court�s rejection of the Ninth Circuit�s application of �serial� continuing violations is not surprising.  Prior to Morgan, numerous courts of appeals had held that discrete adverse actions, such as demotions or denials of promotion, could not form the basis of a continuing violation.[viii]  Thus, in this aspect, the Court�s decision simply brought the Ninth Circuit back from the precipice from which other courts of appeals had already withdrawn. 

 

 

Untimely Acts As �Background Evidence�

In some ways, there is less to this holding than meets the eye.  The Supreme Court had long-ago held that discriminatory acts occurring before the EEOC filing period could still be introduced in a Title VII lawsuit as �background evidence,� even if not part of a continuing violation.[ix]  The Morgan Court reiterated the viability of this rule, proving that even untimely discrete acts may never go completely away; they just fade into the background.  The circumstances and employer rationale for even untimely discrete acts will typically still have to be litigated at the trial of the timely ones.[x]

Although the Court�s rejection of the idea of �serial� continuing violations for discrete acts may be a welcome development from the employer�s perspective, it may have little practical effect.  Lawsuits that address untimely discrete acts will remain as complicated.  Settlement will be less likely and trials will be more common, and it will take more effort to resolve suits with a greater number of active issues.  Moreover, as will be discussed below, the result may be effectively nullified by what the Court said � or, more precisely, did not say � on the issue of workplace-harassment claims.

 

Systemic Continuing Violations

A more significant aspect of Morgan may be a curious footnote in which the Court stated that it was not addressing the timeliness of �pattern-or-practice� discrimination claims.[xi]  That left in limbo another strain of the continuing-violation theory that is often referred to as a �systemic� violation, such as the custom or practices that discriminate in the areas of hiring, promotion, or compensation.[xii]  The �systemic� variant of the continuing violations doctrine is, for some courts, its only form.  It was well-articulated by the Second Circuit�s pronouncement that the continuing-violation exception requires a particular discriminatory act committed in furtherance of an ongoing policy of discrimination, and it �applies only where there are �specific� or �identifiable� discriminatory customs or practices, or specific and related acts that are tantamount to such customs or policies.�[xiii] 

According to the EEOC and some courts, the discrete act itself does not appear to be the statutory violation, but rather it is an employer�s discriminatory policy or practice, as manifested by the discrete act, that violates Title VII.  The charge then is timely if the policy continues into the statutory filing period, irrespective of whether a particular adverse action does or not.[xiv]

Most courts, however, seem to require a discrete act in furtherance of the policy during the filing period, perhaps because it is difficult to see how a complaining employee was actually injured by the policy without it.[xv]  That approach is also implied by Morgan�s treatment of workplace harassment claims.[xvi]  Moreover, it is well accepted that the continuing-violation theory cannot be employed to resurrect claims of past discrimination simply because their effects or consequences linger into the present.[xvii]

While the Morgan decision rejected �serial� violations, it ignored so-called �systemic� violations.  By ignoring this element of the continuing-violation doctrine, the Court failed to take advantage of the opportunity to set a comprehensive standard.  Without guidance from the Court, lower courts are left to form their own interpretations of the applicability of the doctrine to discrete acts that manifest or instantiate “systemic” discrimination.

   

Discriminatory Pay Cases

Another area of uncertainty created by the Morgan decision relates to claims of discriminatory pay.  In Bazemore v. Friday,[xviii] the Court held that claims of racially discriminatory pay were timely, even though the discriminatory practices that created the pay disparity had occurred before the statute applied to the employer.  Because the Morgan Court expressly exempted pattern-or-practice cases from its analysis and then pointedly denominated Bazemore to be “a pattern-or-practice case,”[xix] it would seem that Bazemore survives Morgan.  But the reasoning of Bazemore, as later understood by the courts of appeals, that is, is inconsistent with the Morgan rationale that a series of discrete discriminatory acts is not a continuing violation.  Therein lies the rub.

In Bazemore, a state agricultural department had created two divisions: one of black service agents for predominantly black counties and one of white agents for the rest.  Though the two divisions had been merged years before Title VII became applicable to the states in 1972, the effects of that initial segregation continued in lesser pay for the black employee hired under the old system.  Acknowledging the general rule that a lawsuit is not timely if only the effects of a prior act of illegal discrimination extend into the filing period and, further, that the segregation of the agricultural service was not illegal when it occurred, the Court nonetheless allowed the claim to proceed:  

A pattern or practice that would have constituted a violation of Title VII, but for the fact that the statute had not yet become effective, became a violation upon Title VII’s effective date, and to the extent an employer continued to engage in that act or practice, it is liable under that statute.  While recovery may not be permitted for pre-1972 acts of discrimination, to the extent that this discrimination was perpetuated after 1972, liability may be imposed.

 

Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII.[xx]  

Courts since Bazemore have typically focused on its “each week’s paycheck” language and found a timely continuing violation whenever an unequal paycheck is paid within the filing period (or, for Equal Pay Act cases, the limitations period), even if there is no pattern-or-practice but just a single instance of disparate treatment that occurred at hiring (or promotion) when the initial pay rate was set.[xxi]

In fact, it has been said to be “uniformly recognized” by the circuit courts that a discriminatory pay claim is “fundamentally unlike other claims of ongoing discriminatory treatment because it involves a series of discrete individual wrongs rather than a single and indivisible course of wrongful action,” such that “each race-based discriminatory salary payment constitutes a fresh violation of Title VII.”[xxii]  That sounds much more like the serial continuing violation proscribed by Morgan than the systemic continuing violation at issue in Bazemore.

At least one court since Morgan has notice this conundrum and concluded that while claims predicated on a “discriminatory salary structure” or “discriminatory pay system” would be timely (if a paycheck pursuant to it were issued within the filing period), claims based on “discrete discriminatory acts” are not timely if the only event occurring with the filing period is the issuance of a lesser paycheck due solely to the untimely discrete, discriminatory act.[xxiii]  That may well be the best way to reconcile Bazemore with Morgan, especially in light of the latter’s treatment of sexual harassment as a single discriminatory practice rather than as a series of related discriminatory acts.  Still, it may take awhile before lower courts see their way through to that result.[xxiv]

 

B.                  Hostile Workplace Environment Becomes An Automatic Continuing Violation

In addition to claims of discrimination and retaliation, Morgan had also alleged a workplace permeated by racially derogatory comments, offensive conduct and epithets.  At trial, the jury had found a hostile work environment but concluded that the conduct occurring within the 300-day filing period was not sufficiently severe or pervasive to constitute actionable harassment.  This is not an infrequent result where courts do not find a continuing violation.[xxv]  The Ninth Circuit ordered a new trial directing that offensive behavior occurring before the 300-day period, and the discrete discriminatory acts as well, should all be considered for the purpose of determining Amtrak’s liability for Morgan’s hostile-environment claim.  On that, the Supreme Court affirmed.

Resorting to the formalism that has of late apparently become a favored mode of Supreme Court analysis, the Court focused again on when the harassment had “occurred.”  The majority reasoned that hostile-environment claims are, by their nature, based on the cumulative effect of individual acts that may occur over a series of days, or even years.  Since a single hostile or abusive act is rarely in itself sufficient to constitute actionable harassment, the entire hostile environment constitutes a single unlawful employment practice.  Thus, the Court ruled in Morgan, as long as any act that contributed to the hostile environment occurred within the filing period, the entire course of hostility or abuse can be used to determine liability, even as to instances occurring before the filing period.[xxvi] 

By this reasoning, the Court effectively resurrected for hostile-environment harassment claims the very same “serial” violation doctrine it had rejected with respect to discriminatory discrete acts.  In fact, harassment claims are the classic form of a serial continuing violation, and its application to other discriminatory practices (such as the Ninth Circuit’s application of the doctrine to the discrete acts of discrimination and retaliation in Morgan) is quite unusual.[xxvii]  Thus, as a practical matter, the Court’s rejection of the serial-violation theory is rendered all but moot by its analysis of hostile-environment claims.

 

An Alternative Analysis

The four-member dissent, authored by Justice O’Connor, focused on the uncertainty created by the Court’s analysis.  As Justice O’Connor noted, an employee who experienced a hostile environment for ten years could, under the Court’s rule, “sleep on his or her rights for a decade” before filing a suit “based in part on actions for which a charge could, and should, have been filed many years previously,” with the only constraint being “the uncertain restrictions of equity.”[xxviii] 

The dissent would have had an analytic and not just pragmatic answer to the majority if it had explained that while there may be no end-point of harassment, there is surely a beginning – namely, when previously diffuse hostile and intimidating behaviors become so severe and pervasive as to congeal into actionable harassment.  If one wants to be metaphysical, that is when the harassment first “occurs,” though it may continue “happening” long afterward.  (No matter how gnarled that old tree may be, there was still a point in time when it stopped being an acorn and became an oak.)  There is no reason, therefore, why the filing period should not begin to run from when the actual actionable harassment first began, though, with Morgan, this is not now the law.

It is of course true, as the Court noted, that to assess whether harassment is so severe and pervasive as to constitute illegal discrimination, courts must often consider a broad array of conduct by the alleged harasser, and it may not be until the last incident that a cause of action for harassment may arise.[xxix]  But this is not always true.  Often, an aggregation of incidents sufficient to constitute harassment occur long before the victim actually protests or files a claim.  Beginning the limitations period when the behavior first becomes actionable harassment – that is, when the claim accrues – is no less analytically pure than the approach adopted by the Court.

It appears that Justice O’Connor’s pragmatism was over-ruled by Justice Thomas’ formalism – dare one say metaphysics.  As the majority saw it, the discriminatory harassment has not fully “occurred” until the last offensive behavior.  Until then, the harassment has not actually “happened” and the statute of limitations does not begin to run no matter how long ago the victim first started crying himself to sleep.

 

Discontinuous Continuity

Even more disturbing is that the Court has now created a new strain of continuing violation that can best be termed a “discontinuous” continuing violation.  The Court conjured a hypothetical and reasoned that “all other things being equal, there is little difference between” a scenario in which acts contributing to a hostile environment occur continuously on days 1 through 400 and a scenario in which such acts occur on days 1 through 100 and, after 300 days of quietude, acts with some relation to the previous acts occur on day 401.[xxx]  Under the Court’s analysis, employer liability and damages start to run from day 1 in both scenarios, even though the hostile environment was in one case disrupted by a significant temporal gap. 

Theoretically, a discontinuity of 300 days, 3 months or 3 years would make no difference.  After Morgan, employers can conceivably remain at risk for liability and damages attributable to a hostile work environment for years, possibly until either the victim or the harasser dies or is terminated from employment, as long as one act forming part of the actionable harassment occurs within the EEOC filing period.  

According to one post-Morgan decision, there need not even be a single offensive behavior within the filing period.  All that is needed is for the harasser to continue to breathe and be employed.  In Caggiano v. Fontoura, the New Jersey appellate court, reinstating claims of harassment and discrimination based on gender and sexual orientation, concluded that the “mere presence” of an alleged harasser in the workplace might be sufficient to support a continuing violation under the Morgan analysis, even though the plaintiff did not claim that this individual engaged in any hostile or intimidating act for two years prior to the time that the suit was filed.[xxxi]  Under the analysis of another post-Morgan decision, even physical presence is not always necessary, as the harassment continues, that court said, while the victim is on medical leave.[xxxii]  If an employer’s failure to take appropriate action to correct the harassment is itself part of the harassment, then an employee may continue to be harassed even after she leaves her job, so long as the employer does not ameliorate the hostile environment.[xxxiii]

Since Heracleitus first opined that no one steps into the same stream twice, philosophers have pondered the question of sameness over time.  Now, too, must employment lawyers.  Previously, courts had held that, absent unusual circumstances, a two-year gap between incidents was a discontinuity that defeats the continuing-violation exception.[xxxiv]  Whether that is still true after Morgan remains to be seen.  Or, suppose, a worker experiences severe and pervasive harassment by a supervisor, is transferred to another work group without incident, and then later comes under the supervision of the original supervisor and again experiences actionable harassment.  Is that one discriminatory practice or two?  The Second Circuit had previously held, in such a case, that the earlier incidents were not part of a continuing violation.[xxxv] 

Other such puzzles abound.  Suppose there is a period of overt sexual importuning followed by a period of non-sexual hostility and criticism for having rejected the sexual advances.  Does the continuing-violation doctrine extend liability back to the period of unwanted sexual advances?[xxxvi]  Suppose there is the same kind of harassment but by two different perpetrators at different times.[xxxvii]  Or, suppose there are two different kinds of harassment by two different perpetrators at two separate times.  The EEOC Compliance Manual states that these events are not sufficiently related to constitute a continuing violation.[xxxviii]  At least one court has reached the same conclusion.[xxxix]  What Morgan has to say about any of these puzzles is, to be blunt, Delphic.

 

Awareness and Damages

Prior to Morgan, courts had struggled with ways to cabin the continuing-violations doctrine, which can easily be expanded to effectively nullify any limitations period for employment discrimination claims.  One approach had been to focus on when the cumulative effect of the conduct had become so severe or palpable that a reasonable person in the victim’s position would have recognized that he was a victim of discrimination.[xl]  As Judge Posner noted in articulating this standard for the Seventh Circuit, the alternative “gives too little weight to the social interest in prompt filing especially of suits charging employment discrimination.”[xli] 

The employer in Morgan made the same point, urging that in the hostile-environment context, a plaintiff should be able to recover for conduct occurring prior to the filing period only when the plaintiff “reasonably did not know” that the conduct was discriminatory or when the discriminatory nature of the conduct was evident “only in light of later events.”[xlii]  The Court brushed this aside:  because “the entire hostile work environment encompasses a single employment practice,” the continuing-violation exception does not require that it was unreasonable to expect the plaintiff to have filed his claim earlier.[xliii]  As the law now stands, employees claiming to be subjected to workplace harassment have no duty to assert their rights promptly after becoming aware of their victimization, except as may exist under general principles of equity or the Court’s harassment jurisprudence.  As one post-Morgan case put it, a plaintiff’s knowledge of a harassment claim will not start the filing period to run “so long as the defendant continues the series of non-discrete acts on which the claim as a whole is based.”[xliv]

The pragmatic consequences of Morgan are even more pronounced when one considers its effect on damages.  Before Morgan, one court had tried to limit damages for continuing-violation claims by analogizing the continuing violation doctrine to the tort-law concept of a continuing trespass.  It reasoned from there that while a continuing violation may extend backward in time for liability purposes, there could be no recovery for damages resulting from conduct occurring before the filing period.[xlv]  Some courts had said the opposite.[xlvi]  More frequently, courts had addressed the effect of a continuing violation on liability but said nothing of damages.

The Morgan Court chose to take this bull by the horns.  It reasoned that since the EEOC filing period is not a statute of limitations, compensatory and punitive damages for the harassment can be assessed for the entire period of violation.[xlvii]  The Court explained that as long as an act contributing to the hostile environment claim occurs within the filing period, courts may consider the full period to determine both liability and damages.[xlviii]  The Title VII restriction on back pay liability for up to two years prior to the charge filing still applies, but it has little practical significance for hostile environment claims.[xlix]  The Court reasoned that if Congress had intended to limit liability for damages, it would have done so explicitly. 

That the Morgan decision allows compensatory and punitive damages to be assessed for the entire period of the violation will have limited impact in Title VII cases given the strict statutory limits on non-pecuniary damages.[l]  Most state anti-discrimination statutes, however, do not have such limitations. The consequences could be dramatic if the Morgan analysis is adopted there.

 

Discrete Acts Through the Back Door

Perhaps the most recondite and potentially significant part of Morgan was its implications for discrete adverse actions (such as, a denial of training or promotion) asserted as part of the hostile-environment claim.  In its decision, the Ninth Circuit had both directed a retrial on the issue of harassment and also instructed the district court to include in that trial not only the abusive behavior that people ordinarily associate with the idea of a hostile work environment but also all the various discrete adverse employment actions that the plaintiff had also alleged.  Including adverse personnel actions as part of the hostile environment of verbal abuse and offense is something other courts have done on occasion.[li]  In affirming the viability of the continuing-violations exception with respect to the hostile-environment claim, the court in Morgan did not address this aspect of the Ninth Circuit’s decision.  It merely affirmed.

That produces a conundrum:  Discrete acts are untimely if occurring outside the filing period.  Can they then be resurrected as part of a timely harassment claim by asserting that they are part of the ongoing hostile environment?  If so, are damages for the economic consequences of those adverse actions that occurred prior to the filing period recoverable as damages on the workplace harassment claim, or are they also included by the 2-year limitation on back pay?  As to these questions, the Morgan Court said nothing at all. 

It is not inconceivable that lower courts could apply what Morgan said about the timeliness of harassment claims to claims of harassment that included both abusive and hostile conduct and also an array of what has been called in other contexts, “tangible employment acts.”[lii]  Such an interpretation would effectively nullify Morgan’s bold new pronouncement about the timeliness of discrete acts.  Yet, by its cursory – may one say, cavalier – affirmance of the Ninth Circuit ruling on Abner Morgan’s workplace-harassment claim as he actually framed it, the Court gave no express guidance on the propriety of such an approach.  To paraphrase Lewis Carroll, things are getting curiouser and curiouser.

 

Employers Are Not Entirely Defenseless

Apparently mindful of the consequences of its ruling, the Court expressly stated that its decision “does not leave employers defenseless” when a plaintiff “unreasonably delays filing a charge,” explaining that the filing period is subject to waiver, estoppel and equitable tolling “when equity so requires.”[liii]  But many of these equitable doctrines apply to lengthening a limitations period, not shortening it; they would help the employee, not the employer.[liv]

The Court also explained that an employer may raise a defense of laches when harmed by an employee who “unreasonably” delays filing a suit.[lv]  However, laches, which is based on the maxim “equity aids the vigilant, not those who sleep on their rights,” provides employers with uncertain protection.  The Court noted that a laches defense requires not just of lack of diligence by the plaintiff but also prejudice to the defendant, and it explicitly refused to address what degree of prejudice is necessary, how this prejudice must be shown, what consequences would follow a successful laches defense and whether the defense may be asserted against the EEOC.[lvi]  At bottom, the Court “only” noted that such defenses might be raised “in the face of unreasonable and prejudicial delay,” but gave no guidance on how those defenses might actually play out.[lvii]  In what may be the first federal, post-Morgan decision, a court rejected the laches defense because the employer had not argued that it was prejudiced by the filing delay.[lviii] 

In practice, the laches defense is rarely available, as employers face an uphill battle in proving unreasonable delay, and material prejudice resulting from the delay.  Courts have taken varying positions on what constitutes an unreasonable delay.[lix]  Even when the delay is unreasonable, however, courts have held that delay alone will not support a laches defense.[lx]  Moreover, courts are reluctant to find that an employer has been materially prejudiced, holding that neither the accrual of additional back-pay liability,[lxi] nor the absence of former employee witnesses necessarily constitute prejudice the employer.[lxii]   Some courts have even held that notice given to the employer by the EEOC at the time of the charge completely nullifies any possible prejudice resulting from the delay.[lxiii]  Employers are likely to find little comfort in the Morgan Court’s reassurance that the laches defense is still available, and Justice O’Connor may have engaged in extreme understatement in her observation that the protections of equity for employers are “uncertain.”

As a consequence of Morgan, the affirmative defense against liability created by the Court some years ago in its Ellerth and Faragher decisions has become even more crucial.[lxiv]  Whether the employer adequately adopted and maintained a mechanism for avoiding illegal harassment, trained its supervisors, and promptly corrected harassment when it occurred, and whether the employee unreasonably failed to avail him or herself of the employer’s remedial process – this may now become the crux of every hostile-environment lawsuit.  Unless liability for workplace harassment is avoided altogether by prevention or timely remediation, it can now extend back for a very long time, virtually to the worker’s first day on the job.  

Michael Starr is a partner in the Labor and Employment Group of Hogan & Hartson L.L.P. and Adam Heft is an associate in the Group.

A version of this article appeared in The National Law Journal.

[i]     122 S. Ct. 2061 (2002). 

[ii]     Section 706(d)(1) of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-5(e)(1).

[iii]    122 S. Ct. at 2069.

[iii]    122 S. Ct. 2061 (2002).

[iv]    Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1166 (7th Cir. 1996); Elliott v. Sperry Rand Corp., 79 F.R.D. 580 (D. Minn. 1978).

[v]     122 S. Ct. at 2070. 

[vi]    Id. at 2073.  Courts have recognized continuing violations involving a series of related discriminatory acts, one of which falls within the applicable limitations period.  Under the so-called “serial” type of continuing violation, if the acts were violations of the statute, the charge-filing period was extended to apply to the first discriminatory act in the series.  See, e.g. Berry v. Board of Supervisors of Louisiana State University, 715 F.2d 971 (5th Cir. 1983).

[vii]    122 S. Ct. at 2072.

[viii]   See Stolzenburg v. Ford Motor Co., 143 F.3d 402, 405 (8th Cir. 1998); Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998); Rush v. Scott Specialty Gases, Inc., 113 F.3d 476 (3d Cir. 1997).

[ix]    United Airlines v. Evans, 431 U.S. 553, 558 (1977). 

[x]     But see Annis v. County of Westchester, 136 F.3d 239, 246 (2d Cir. 1998) (the probative value of old incidents was “far outweighed by its tendency to confuse the jury and unfairly prejudice the defendants”). 

[xi]    122 S. Ct. at 2073 n.9. 

[xii]    See Provencher v. CVS Pharmacy, 145 F.3d 5, 14 (1st Cir. 1998) (systemic violations refer to “general practices or policies, such as hiring, promotion, training and compensation”).

[xiii]   Weeks v. New York State, 273 F.3d 76, 82-83 (2d Cir. 2001) (emphasis added); Quinn-Nolan v. Schulte, Roth & Zabel, No. 00 CIV. 7936 (SHS), 2002 WL 1758920, at *3, (S.D.N.Y. July 30, 2002); But see Johnson v. Buffalo Police Department, 46 Fed.Appx. 11 (2d Cir. 2002) (questioning continued viability of weeks in light of Morgan) (unpublished decision).

[xiv]   Reed v. Lockheed Aircraft Corp., 613 F.2d 757 (9th Cir. 1980) (systemic violation always timely if brought by a present employee because the existence of the system deters the employee from seeking his full employment rights or threatens to adversely affect him in the future); Equal Employment Opportunity Commission Compliance Manual, Interpretive Manual Vol. 2, § IV-C (hereinafter “EEOC Manual”) at par. 2(b).

[xv]    See, e.g., Abrams v. Baylor Coll. of Med., 805 F.2d 528, 534 (5th Cir. 1988); Domingo v. New England Fish Co., 727 F.2d 1429 (9th Cir. 1984) (limiting Reed, supra, and holding that normally an actual employer action within the charge-filing period that affects the plaintiff is required). 

[xvi]   122 S.Ct. at 2074 (requiring some harassing conduct within filing period).

[xvii]   See United Airlines v. Evans, supra, at 558; EEOC Manual at par. 2(a). 

[xviii]  478 U.S. 385 (1986).

[xix]   122 S. Ct. at 2071.

[xx]    478 U.S. at 396-97.

[xxi]   See, e.g., Goodwin v. General Motors Corp., 275 F.3d 1005, 1009-10 (10th Cir. 2002); cert. denied, 123 S. Ct. 340 (2002); Cardenas v. Massey, 269 F.3d 251 (3d Cir. 2001); Pollis v. The New School for Social Research, 132 F.3d 115 (2d Cir. 1997).

[xxii]   Goodwin, 275 F.3d at 1010 (emphasis added) (internal quotation omitted).

[xxiii]  Inglas v. Buena Vista University, 2002 WL 31818192 (N.D. Iowa Dec. 16, 2002), at * 11 to * 12.  But see Tomita v. University of Kansas Medical Center, 2002 WL 31323428 (D. Kansas Oct. 8, 2002), at *7.

[xxiv]  Back pay for discriminatory pay claims, under any analysis, does not extend back to the original illegal act, but is limited to amounts of lesser pay received within the limitations period or the two-year back pay period for Title VII.   See, e.g., Goodwin, 275 F.3d at 1011; Pollis, 132 F.3d at 119.

[xxv]   See, e.g., Klein v. McGowan, 198 F.3d 705, 710 (8th Cir. 1999); Galloway, 78 F.3d at 1168.

[xxvi]  122 S. Ct. at 2074.

[xxvii]  See, e.g., EEOC Manual at para. 2(a) (giving examples and citing illustrative cases).

[xxviii] 122 S. Ct. at 2078-2079. 

[xxix]  Id. at 2074.  See, e.g. Galloway, 78 F.3d at 1166 (in early stages conduct “may not be diagnosable as sex discrimination or may not cross the threshold that separates the non-actionable from the actionable” conduct). 

[xxx]   122 S. Ct. at 2075. 

[xxxi]  804 A.2d 1193, 1207 (N.J. Super. Ct. App. Div. 2002).  Under New Jersey law, there is a two-year limitations period for employment-discrimination claims.

[xxxii]  Jensen v. Henderson, 2002 WL 31748850 (8th Cir., December 10, 2002) (the hostile work environment still existed even though plaintiff was on leave for clinical depression allegedly resulting from the workplace harassment).

[xxxiii] Id.; see also Cornwell v. Robinson, 23 F.3d 694 (2d Cir. 1994).

[xxxiv] See Weeks, 273 F.3d at 84. 

[xxxv]  See Annis, 136 F.3d at 246. 

[xxxvi] See Fitzgerald v. Henderson, 251 F.3d 345 (2d Cir. 2001) (continuing violation exception not applicable); Klein, 198 F.3d 705 (continuing violation exception not applicable where acts within the limitations period were nonsexual acts, such as giving negative performance evaluations or excluding the employee from the work group); But see Porta v. Rollins Environmental Servs., 654 F.Supp. 1275 (D.N.J. 1987) (continuing violation exception may apply where sexual innuendos and ongoing disparate treatment outside the filing period could be reasonably related to plaintiff’s termination).

[xxxvii] See Ballance v. Energy Transp. Corp., No. 00 CIV 9180 (LMM), 2001 WL 1246586 (S.D.N.Y. Oct. 18, 2001) (continuing violation exception not applicable). 

[xxxviii]                  EEOC Manual at para.  2(a).  

[xxxix] See Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 707-8 (7th Cir. 1995) (two sexual touchings by company president outside filing period, followed by incidences of sexually derogatory jokes by co-workers are not “related closely enough” to be a single, ongoing violation).

[xl]    See, e.g., Miller v. American Family Mut. Ins. Co., 203 F.3d 997 (7th Cir. 2000) (no continuing violation where plaintiff had a suspicion at the time that she was a victim of discrimination but chose not to make any further inquiries or take other action); Webb v. Cardiothoracic Surgery Assoc., 139 F.3d 532, 537-538 (5th Cir. 1998) (two incidents of sexual harassment outside the limitations period should have put the employee on notice of a potential sexual harassment claim); Berry, 5 F.2d at 981 (critical question is whether the act has a “degree of permanence” sufficient to trigger the employee’s “awareness of and duty to assert his or her rights.)   

[xli]    Galloway, 78 F.3d at 1166 (emphasis in original).

[xlii]   122 S. Ct. at 2074, n.11. 

[xliii]  Id. at 2075. 

[xliv]   Shepherd v. Hunterdon Developmental Ctr., 803 A.2d 611, 624 (N.J. 2002); See also Pickens v. Continental Plastic Containers, No. 01-2440-JWL, 2002 WL 1402229, at *4, (D. Kan. June 21, 2002) (finding that awareness of harassment since mid-1990’s does not invalidate charge first filed in mid-2001).

[xlv]   See Berry, 715 F.2d at 978, n.11. 

[xlvi]   See Acha v. Beame, 570 F.2d 57 (2d Cir. 1978); Ortiz-del Valle v. National Basketball Assoc., 42 F.Supp.2d 334 (S.D.N.Y. 1999).

[xlvii]  122 S. Ct. at 2074. 

[xlviii] Id. 

[xlix]   See 42 U.S.C. § 2000e-5(g)(1).

[l]     42 U.S.C. §1981a.

[li]     See Alfano v. Costello, 294 F.3d 365, 375 (2d Cir. 2002). 

[lii]    See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807-808 (1998).

[liii]   122 S. Ct. at 2076.

[liv]    See, e.g., Speer, supra, 123 F.3d at 663 (Equitable estoppel applies when defendant takes active steps to prevent the plaintiff from suing in time, such as by hiding evidence or promising not to plead the statute of limitations); Miranda v. B & B Cash Grocery Store, Inc. 975 F.2d 1518, 1532 (11th Cir. 1992) (equitable tolling appropriate because defendant led plaintiff to believe that unfair treatment would be rectified).

[lv]    122 S. Ct. at 2077. 

[lvi]    Id. 

[lvii]   Id.

[lviii]  Pickens, supra at *4 n. 4.

[lix]    Compare EEOC v. Dresser Indus., Inc., 668 F.2d 1199 (11th Cir. 1982) (delay of five years and eight months unreasonable) and EEOC v. Massey-Ferguson, Inc., 622 F.2d 271 (7th Cir. 1980) (delay of four years and nine months unreasonable) with EEOC v. Warshawsky and Co., 768 F.Supp. 647 (N.D. Ill. 2001) (delay of four years and two months not unreasonable).

[lx]    See, e.g., EEOC v. Admiral Maintenance Serv., L.P., 1998 WL 102748 (N.D. Ill. February 26, 1998) (four year and four month delay).

[lxi]    See EEOC v. Acorn Niles Corp., 1995 WL 519976 at *4 (N.D. Ill. August 29, 1995).

[lxii]   See EEOC v. Admiral Maintenance Serv., L.P., supra.

[lxiii]  See EEOC v. Integrated Food Sys., 49 EPD ¶ 38,796 (S.D.N.Y. 1988) (employer not unfairly prejudiced by three and one half year delay where EEOC notified the company of the charge when witnesses were still employed by the company); EEOC v. Jacksonville Shipyards, Inc., 690 F.Supp. 995 (M.D. Fla. 1988) (no prejudice from five year delay because EEOC had promptly informed defendant of pending charges).

[lxiv]   Burlington Indus., Inc., 524 U.S. 742; Faragher, 524 U.S. 775.