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News / Articles / Blog

May 16, 2002

Rutgers Law Record

26 Rutgers L. Rec. 6

Maurice W. McLaughlin, James P. McGovern [FN1]

Application of the Continuing Violation Doctrine Under Title VII and New Jersey's Law Against Discrimination


  1. Sexual Harassment: The Problem

    Gender-based discrimination in the terms and conditions of a person's employment is prohibited by Title VII of the Civil Rights Act of 1964, [FN2] as well as the law of most states, including New Jersey. [FN3] “Sexual harassment” falls within the scope of this prohibited conduct. [FN4]
    1. Sexual Harassment Happens
      The first major survey of harassment in the workplace was conducted by the United States Merit Systems Protection Board (“MSPB”) is 1980. [FN5] Its results, published in 1981, found that 42 per cent of female, and 15 per cent of male employees surveyed had experienced some form of “sexual harassment,” which the MSPB defined as “unwanted sexual attention,” within the last 2 years. Follow-up surveys in 1987 and 1994 found this conduct undiminished. In fact, by 1994, the percentages of employees reporting “sexual harassment” had increased to 44 per cent of women and 19 per cent of men. [FN6]

      These increases are all the more disturbing given an increase in sexual harassment training during this period following recognition by the United States Supreme Court of a cause of action for “sexual harassment” or a “hostile work environment.” [FN7]

      Indeed, sexual harassment is not confined to the workplace. Unfortunately, it “is an all too common aspect of the educational experience”--or before a person even gets the chance to become an employee. [FN8] The stage is thus set for diminished expectations once a person moves from being a student to an employee in the home of the brave and the land of the free.
    2. Sexual Harassment is Underreported
      Sexual harassment has been found to be prevalent in the workplace. However, the problem is most likely far greater than acknowledged, as studies have also found that recipients are reluctant, at best, to report the harassment.
      1. Victims Fear Reprisal
        For instance, surveys have found that more than one-third of all women who experienced sexual harassment at the national military academies-among our nation's most prestigious institutions of higher learning-did not report it for fear of reprisal. [FN9] Such fear of reprisal is a common consideration by many victims of harassment when considering reporting. [FN10]
      2. Harassment is Not Always Immediately Recognizable
        Massachusetts Institute of Technology (“MIT”) is America's premier engineering university. [FN11] Its faculty is rated among the best in our country. [FN12] MIT's own study found that there was wide-spread discrimination against women--albeit not intentional. The female faculty members who were the victims of the discrimination, however, only came to realize what was happening over the course of their careers, often after a period of many years. Indeed, they had never even discussed the problem among themselves, and did not know whether their individual experiences were unique within the university. Indeed, the study found that each faculty member came in thinking that sexual discrimination and harassment was a thing of the past. It was only over the long haul that they came to realize what was happening. Indeed, they observed that gender parity was no longer a priority. [FN13]
      3. Psychological Reactions
        Studies have found that victims of sexual harassment tend to focus their reactions either internally or externally. [FN14]

        External reactions include “avoidance, assertion/confrontation, institutional/organizational relief, social support, and appeasement.” Internal responses include “detachment, denial, re labeling, illusory control, and endurance.” However, it is the internal reactions which studies have found are “by far the most common response overall. Thus, the majority of victims, both men and women, “respond to sexual harassment by not confronting the problem.” [FN15]
    3. Sexual Harassment Remains a Severe and Pervasive Problem
      Given the prevalence of sexual harassment found by recent studies, and the reluctance of victims to report it at all, it is clear that 37 years after the Civil Rights Act of 1964 was signed into law, and 15 years after the United States Supreme Court's decision in Meritor, sexual harassment remains a severe and pervasive problem.
  2. Hostile Work Environment

    Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination in employment based on a person's membership in a protected class, such as a particular “race, color, religion, sex, or national origin.” [FN16]

    New Jersey's Law Against Discrimination (the “LAD”) provides similar protections to employees who fall within these protected classifications, but further extends protection against discrimination based on creed, ancestry, age, marital status, affectional or sexual orientation, genetic information, familial status, liability for service in the Armed Forces of the United States, or nationality, atypical hereditary cellular or blood trait. [FN17] New Jersey Courts often look toward Title VII when interpreting the LAD. [FN18]

    Workplace discrimination encompasses two broad categories. The first category encompasses tangible, adverse employment actions, such as termination or demotion, which have economic consequences. The second is harassment, or a “hostile work environment.” [FN19] The United States Supreme Court, following guidelines of the Equal Employment Opportunity Commission (“EEOC”) and several lower court rulings, first recognized a cause of action for a hostile work environment in 1986. [FN20]

    The United States Supreme Court has defined a hostile work environment as one which encompasses “sexual harassment so severe or pervasive as to alter the conditions of the victims employment and create an abusive working environment.” [FN21]

    Title VII requires aggrieved employees to file a complaint with the Equal Employment Opportunity Commission within 180 days after the alleged unlawful practice occurred, or within 300 days if the employee has first filed the charge with a state or local equal employment agency. This requirement “functions as a statute of imitations.” Complaints of incidents occurring outside this limitation period are time-barred. [FN22]

    The limitations period is established to strike a balance between protecting the civil rights of employees and protecting employers from the burden of defending claims arising from “employment decisions that are long past.” [FN23]

  3. Title VII and the Continuing Violation Theory

    While claimants have only 180 to 300 days to file under Title VII, however, the statute is clear on its face that this should not be the limit of the claim. For example, Title VII expressly allows for back pay to be awarded up to 2 years prior to the filing of the charge with the Equal Employment Opportunity Commission (the “EEOC”). [FN24] Thus courts have reasoned that “Congress must have envisioned continuing remediable violations that existed prior to the running of the period.” [FN25]

    The Federal Courts have therefore recognized the “continuing violation” theory. The continuing violation theory allows recovery for discriminatory actions causing a hostile work environment which occur prior to the limitation period of Title VII, when at least one action occurs within the limitation period. The courts have reasoned that a “continuing system of discrimination operates against the employee and violates his or her rights up to a point of time that falls within the applicable limitations period.” [FN26] The continuing violation theory therefore allows a harassed employee to reach back to obtain relief for harassment that occurred prior to the statutory limitations period by linking it together with timely harassment as one continuous discriminatory practice that took place within the limitations period. [FN27]

    The theory is “premised on the equitable notion that the statute of limitations should not begin to run until a reasonable person would be aware that his or her rights had been violated.” Thus if a plaintiff knew or reasonably should have known that she was being discriminated against at the time the earlier events occurred, the continuing violation doctrine will not be applied. [FN28]

    The courts have held, however, that “the mere perpetuation of the effects of time-barred discrimination does not constitute a violation of Title VII in the absence of independent actionable conduct occurring within the statutory period.” [FN29]

    Each of the United States Circuit Courts of Appeal have recognized the validity of the continuing violation doctrine. [FN30]

  4. The Continuing Violation Theory
    Under Title VII: The Requirements


    To satisfy the continuing violation doctrine, “the plaintiff must show [first] that a hostile environment exists and [second] it continued into the period of limitations.” [FN31] The continuing violation doctrine relieves an employee of the burden of establishing “that all of the complained-of conduct occurred within the actionable period if the [employee] can show a series of related acts, one or more of which falls within the limitation period.” The courts have stated that “The core idea of the continuing violation theory ... is that equitable considerations may ... require that the filing periods not begin to run until [the harassment] should be apparent to a reasonably prudent person similarly situated.” [FN32]

    The United States Supreme Court first held that discriminatory conduct which predates the limitations period nonetheless be actionable under a “continuing violation theory” in the context of the Fair Housing Act of 1968. [FN33] In that case, the plaintiffs alleged that the defendants engaged in the “racial steering” of minority renters in violation of the act. [FN34] The Court noted that statutes of limitations are designed to eliminate “stale” claims. Thus, where the violation is continuing, there is no staleness, and thus concern for staleness disappears. [FN35]

    The Supreme Court has made clear, however, that a cause of action cannot be maintained unless at least one past act of discrimination which constitutes the course of conduct must fall within the limitation period. [FN36]
    1. At Least One Act Must Have Occurred Within the Limitation Period.
      The first and critical question, then, is “to establish that any violation exists during the statutory period.” [FN37] The most recent act must fall within the limitation period. [FN38]

      Thus the first inquiry is whether an act occurred within the limitation period and, if it did, whether the act related to those before it. This should be determined by examined by the “totality of the circumstances.” [FN39] Because it often does not become apparent until much later that conduct was discriminatory, the continuing violation doctrine requires a “fact-specific inquiry that cannot be easily reduced to a formula.” The focus “is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights. This inquiry is one of fact. [FN40]
    2. There Must Be a Continuing Violation.
      The second question is “whether the discriminatory act either was part of a series of related discriminatory acts or was caused by a discriminatory system in effect both before and during the limitations period.” [FN41]

      This factual determination should be made by the District Court and reviewed on appeal using the “clearly erroneous” standard. [FN42] The Court must distinguish “between the present consequence of a one time violation, which does not extend the limitations period, and the continuation of the violation into the present, which does.” [FN43] Thus, for instance, the Third Circuit held that while “continual comments” constituted “continuous sexual harassment,” failure to promote and train were not. [FN44]
    3. Types of Continuing Violation.
      The Federal Courts have recognized two types of continuing violations: “serial violations” and “systematic violations.” [FN45]

      A serial violation “is composed of a number of discriminatory acts mandating from the same discriminatory animus, each act constituting a separate wrong actionable under Title VII.” The “systematic violation” is the “maintenance of a discriminatory system both before and during the limitations period.” [FN46]
      This distinction requires the plaintiff to “prove either a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the statutory period.” [FN47]
    4. Factors Considered in Evaluating the Continuing Violation.
      Once the employee has established that at least one violation occurs within the limitation period, the court will examine whether plaintiff has shown that there was an “ongoing pattern or practice of discrimination, rather than one isolated instance.” [FN48]

      Some of the factors which courts have looked to in determining whether the acts constituted an ongoing practice include whether the acts involve the “same subject matter,” and the “frequency” or recurrence of the acts. [FN49] This requires discovery into whether a continuing violation exists. In fact, admission of earlier evidence where plaintiff did not even allege a continuing violation has been held to be “harmless error.” [FN50]

      Many circuits also examine the “degree of permanence.” Degree of permanence has been distinguished by whether or not it would have been unreasonable to expect the plaintiff to sue before the statute ran on the conduct. If it becomes clear that the prior acts constituted harassment only when viewed in light of subsequent acts, this will not bar the claim. But if the acts “are so discrete in time and circumstances that they do not reinforce each other” the earlier ones will not be saved by the continuing violation doctrine. [FN51]

      “Permanence,” however, may be a slightly misleading designation. “Permanence” has been defined more precisely as “a continuing intent to harass.” [FN52] Other courts, without using the same label, have imposed a similar requirement. For example, the Second Circuit requires “proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.” [FN53] Isolated, individual adverse employment actions, such as demotions or failures to promote, as distinguished from actions such as the “petty annoyances of daily harassment” such as being “ribbed and harassed by co-workers” for the employee's race, gender or like qualities which create a hostile work environment, are not saved by the continuing violation doctrine if filed after Title VII's limitations period has run. They do not have the requisite “permanence.” But, if such adverse employment actions fall into the “same pattern of behavior” which amount in sum to a “continuous violation by rendering [the employee's] workplace a hostile environment” then they have “permanence” and will fall within the continuing violation doctrine. [FN54] More precisely, the Seventh Circuit has described this requirement as the character of the violation not becoming clear “until it was repeated during the limitations period.” [FN55]

      This requirement goes beyond the requirement that the employee must merely show an “ongoing pattern or practice of discrimination, rather than one isolated instance.” [FN56] Indeed, the Ninth Circuit has suggested that the fact that the employee was aware of the earlier acts of discriminatory harassment will not trigger the limitations period if the acts were part of a “systematic policy of discrimination,” and at least one act fell within the limitations period. [FN57]
    5. Obviousness.
      It is important to bear in mind that the continuing violation theory is a creature of equity. It therefore does not allow plaintiffs to escape the requirements of legislature if they slumbered on their rights. Rather, it focuses on “fairness and logic” to prevent shutting the courthouse door on a wronged employee. It therefore provides relief for a pattern of conduct which only becomes apparent with the passage of time, when the pattern becomes discernable. Thus, for example, the courts have noted that while an isolated demotion or transfer may not of itself appear discriminatory, over the passage of time it may become apparent that the demotions or transfers are occurring only to members of a minority or women. [FN58] The continuing violation does not apply where there are single, discrete, significant events such as termination, demotion, transfer, or failure to promote. [FN59]

      Obviousness and permanence are thus closely linked.

      The Courts have recognized that not all discriminatory acts are obvious as such when they occur. They may only be recognized much later for what they truly are. As the Third Circuit noted:

      A hostile work environment is like a disease. It can have many symptoms, some of which change over time, but all of which stem from the same root. The etiology in this case is pure gender bias. [FN60]
    6. Recovering Damages Beyond The Limitations Period.
      Because the objective of formulating an “appropriate remedy” under Title VII is to provide “the most complete relief possible to eliminate the effects of discrimination,” backpay, the recovery of pay lost by the aggrieved employee, may be based on acts that occurred prior to the limitations period when a violation has been established by an act within the period.” [FN61]
      To recover for acts outside the limitation period, however, a claimant bears the burden of establishing a substantial relationship between the “timely and untimely claims.” The First Circuit has defined this requirement as barring a claim when the “putative plaintiff knowingly fails to seek relief .... A knowing plaintiff has an obligation to file promptly or lose his claim.” However, a plaintiff who is “unable to appreciate that he is being discriminated against until he has lived through a series of acts and is thereby able to perceive the overall discriminatory pattern” shall not be barred from recovering for distant claims. [FN62]

NEW JERSEY: THE CONTINUING VIOLATION AND THE LAW AGAINST DISCRIMINATION

New Jersey's primary law against employment discrimination is the Law Against Discrimination (the “LAD”). [FN63] In 1990, New Jersey's Supreme Court, following the United States Supreme Court's interpretation of Title VII and the New Jersey Division of Civil Rights' interpretation of the LAD, held that “sexual harassment” violated the LAD. [FN64]

New Jersey's Supreme Court has held that the LAD is, under most circumstances, subject to a two year limitation period. [FN65] This limitation period is subject to certain exceptions. [FN66]

Like the federal courts with Title VII, New Jersey's courts have adopted the continuing violation theory when examining the timeliness of hostile work environment claims under the LAD. [FN67]

This comports with New Jersey's Court's interpretation of the LAD. It is black letter law in New Jersey that harassment is not determined by a considering the severity of an individual incident, or the severity of individual incidents in a continuing series of incidents. Rather, courts must “bear in mind” that each successive episode has its predecessors, that the impact of separate incidents may accumulate, and that the work environment created may exceed the sum of the individual episodes.” [FN68]

While the LAD was unclear on its face, in 1999 New Jersey's Supreme Court squarely held that while the LAD has a two year statute of limitations, when acts are committed over an extended period of time the limitations period does not begin to run “until the final act has occurred or the conduct has ceased.” Thus, “the cumulative effect of a series of discriminatory or harassing events represents a single cause of action for tolling purposes and [] the statute of limitations does not commence until the final act of harassment.” The harassment is “indivisible.” The statute of limitations in such situations does not restrict the time within which a plaintiff can recover damages for a continuing hostile work environment. This can only be determined through discovery covering the entire course of harassment. [FN69]

For instance, in Wilson, while accepting the premise that the two year statute of limitation period applied, New Jersey's Supreme Court allowed damages to be recovered from 1990 on under the continuing violation theory, even though the plaintiff's complaint was not filed until 1996. [FN70]

This only comports with reason. As the Court recently noted in New Jersey's seminal case on sexual harassment:

A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents but on the overall scenario. [FN71]

Indeed, later incidents may be of greater weight. Each incident can increase the hostility of the work environment:

Women live in a world in which the possibility of sexual violence is ever-present. Given that background, women may find sexual conduct in an inappropriate setting threatening .... Because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive. [FN72]

Validity

Given the broad acceptance of the continuing violation theory, it may seem an academic to question its validity. However, the courts have taken a limitation period enacted by the legislature and, without arguing that the limitation period itself violated any sort of constitutional norm, have gone about allowing it to be ignored.

The harm done by sexual harassment is recognized by the courts, the legislature, and empirical research. However, while the need is clear, it is questionable whether it is in the province of the judiciary to fashion an equitable remedy for actions which occur earlier than the time expressly established by the legislature within which a claim must be filed.

However, both the United States and New Jersey's Supreme Courts have spoken, and Congress and New Jersey's legislature have chosen to accept this voice. The question therefore appears settled.

[FN1]. Maurice W. McLaughiln is an associate at Cohn Lifland Pearlman Herrmann & Knopf LLP. James P. McGovern, a 2001 graduate of Rutgers University School of Law, Newark, is currently a law clerk for the Honorable Dorothea O'C. Wefing, J.A.D. This article was completed prior to the beginning of his clerkship and thus the views expressed herein are entirely those of the authors. This article in no way reflects policies or opinions of the Judiciary, or any division or member thereof.

[FN2]. 42 U.S.C. §2000e-2.

[FN3]. See N.J.S.A. 10:5-1, et seq.

[FN4]. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); Lehman v. Toys ‘R’ Us, 132 N.J. 587 (1993). See also Misty L. Gill, The Changed Face of Liability for Hostile Work Environment Sexual Harassment: The Supreme Court Imposes Strict Liability in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellreth, 32 CREIGHTON L. REV. 1651, 1651-1652 (1999).

[FN5]. Anne Lawton, The Emperor's New Clothes: How the Academy Deals With Sexual Harassment, 11 YALE JOURNAL OF LAW AND FEMINISM 75, 79 (1999).

[FN6]. U.S. Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Is it a Problem? (1981); U.S. Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Trends, Progress Continuing Challenges (1995); U.S. Merit Systems Protection Board, Sexual Harassment in the Fedearl Workplace: An Update (1988). Similar surveys have confirmed these results. General Accounting Office, Pub. No. 95-192, Equal Employment Opportunity: NIH's Handling of Alleged Sexual Harassment and Sex Discrimination Matters (1995), at App. III.

[FN7]. In 1986 the Supreme Court resolved considerable uncertainty by finding that sexual harassment, or creation of a “hostile work environment” violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000, et seq. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); Lawton, supra, note 4, at 80.

[FN8]. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 292 (1998).

[FN9]. General Accounting Office, Pub. No. 94-6, DOD Service Academies: More Actions Needed to Eliminate Sexual Harassment, (1994).25; General Accounting Office, Pub. No. 95-58, DOD Service Academies: Update On Sexual Harassment, (1995) 17-23.

[FN10]. See, e.g., Matthew S. Hesson-McInnis & Louise F. Fitzgerald, Sexual Harassment: A Preliminary Test of an Integrative Model, 27 Applied Soc. Psychol. 877, 896 (1997); David Lewin, Dispute Resolution in the Nonunion Firm: A Theoretical and Empirical Analysis, 31 J. Conflict Resol. 465, 472 (1987); Peter Feuille & John T. Delaney, The Individual Pursuit of Organizational Justice: Grievance Procedures in Nonunion Workplaces, 10 Personnel & Hum. Resources Mgmt. J. 705 (1992); Daniel Niven, The Case of the Hidden Harassment, Harvard Bus. Rev. (Mar-Apr. 1992), at 12, 23.

[FN11]. U.S. NEWS & WORLD REPORT ranked MIT as the number one engineering school in the country. See http://usnews.com/usnews/edu/beyond/bchome.htm

[FN12]. Id.

[FN13]. A Study of the Women Faculty in Science at MIT (Oct. 16, 1999) (see http://web.mit.edy/fnl/women/women.pdf) Carey Goldberg, MIT Admits Discrimination Against Female Professors, N.Y. TIMES, Mar. 23, 1999, at 5; Elizabeth M. Schneider, Gender Bias, Cognition and Power in the Legal Academy, 65 Brooklyn L. Rev. 1125, 1125-1126, 1127-1129 (1999).

[FN14]. Lisa S. Tsai, Continuing Confusion: The Application of the Continuing Violation Doctrine to Sexual Harassment, 79 TEXAS L. REV. 531, 554-556 (Dec. 2000)(Citing Michele A. Paludi, et al., Sexual Harassment in Education and the Workplace: A View From the Field of Psychology, in The Psychology of Sexual Victimization: A Handbook (Michele A. Paludi, ed.,. 1999).

[FN15]. Id.

[FN16]. 42 U.S.C.S. § 2000e-2(a)(1).

[FN17]. N.J.S.A. 10:5-12.

[FN18]. Lehman v. Toys R Us, 132 N.J. 587, 600 (1993).

[FN19]. Faragher v. Boca Raton, 524 U.S. 775 (1998).

[FN20]. Meritor Savings Bank v. Vinson, 477 U.S. 57, 63-69 (1986).

[FN21]. Faragher, v. Boca Raton, 524 U.S. 775 (1998) (quoting Meritor, 477 U.S. at 64 (internal quotations and citations omitted)).

[FN22]. 42 U.S.C. 2000e-5(e); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 165 (2d Cir. 1998).

[FN23]. Delaware State College v. Ricks, 449 U.S. 250, 256-257 (1980); Fielder v. UAL Corp., 281 F.3d 973, 983(9th Cir. 2000).

[FN24]. 42 U.S.C. § 2005e-5(g).

[FN25]. Sabree v. United Broth. Of Carpenters and Joiners Local No. 33, 921 F.2d 396, 401 (1st Cir. 1990).

[FN26]. Fielder, 281 F.3d at 983. Courts have also held that the continuing violation doctrine is applicable to the Federal Civil Rights Act, 42 U.S.C. §§ 1981, 1983. Jackson v. Quanex Corp., 191 F.3d 647, 667-668 (6th Cir. 1999); Causey v. Balog, 162 F.3d 795 (4th Cir. 1998).

[FN27]. Place v. Abbott Laboratories, 215 F.3d 803, 807 (7th Cir. 2000).

[FN28]. Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310-1311 (10th Cir. 1999).

[FN29]. Huckabay v. Moore, 142 F.3d 233, 238-239(5th Cir. 1998).

[FN30]. See, e.g., Sabree, 921 F.2d at 400; Quinn, 159 F.3d at 165; West v. Philadelphia Electric Co., 45 F.3d 744, 754 (3d Cir. 1995); Tinsely v. First Union Nat. Bank, 155 F.3d 435, 442-443 (4th Cir. 1998); Huckabay, 142 F.3d at 238-239; Jackson v. Quanex Corp., 191 F.3d 647, 667-668 (6th Cir. 1999); Filipovic v. K&R Exp. Systems, Inc., 176 F.3d 390, 395-396 (7th Cir. 1999); Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1303 (8th Cir. 1997); Fielder v. UAL Corp., 281 F.3d 973, 983 (9th Cir. 2000); Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310-1311 (10th Cir. 1999); Calloway v. Partners Nat. Health Plans, 986 F.2d 446, 448 (11th Cir. 1993); Palmer v. Kelly, 17 F.3d 1490, 1496 (D.C. Cir. 1994).

[FN31]. Fielder, 281 F.3d 973, 985.
It should be noted that while the continuing violation doctrine is most often applied in the context of a hostile work environment, it is equally applicable in the less frequent adverse employment actions which constitute continuing violations, such as disparate impact cases. Bazemore v. Friday, et al., 478 U.S. 385, 395-396 (1986).

[FN32]. Huckabay, 142 F.3d at 238.
While the continuing violation theory “makes most sense in a sexual harassment case” it has been applied in other areas. It may, in fact, also be appropriate in Title VII retaliation claims. Place, 215 F.3d at 807.

[FN33]. The Fair Housing Act of 1968 is codified at 42 U.S.C. 3604, et seq.
The Court had earlier rejected a claim that discrimination constituted a “continuing violation.” However, this decision was strictly based on the particular facts alleged by the employee. The court did not reach the validity of the argument that ongoing discrimination could constitute a continuing violation. Delaware, 449 U.S. at 256-258.

[FN34]. Havens Realty Corp. v. Coleman, 455 U.S. 363, 367-380 (1982).

[FN35]. Id., at 380.

[FN36]. Lorance v. AT&T Technologies, Inc., 490 U.S. 900, 906-908 (1977). See also Evans v. United Air Lines, 431 U.S. 553, 558 (1977); Bazemore, 478 U.S. at 395-396.

[FN37]. Jenson, 130 F.3d at 1303; Palmer, 17 F.3d at 1496.

[FN38]. Huckabay, 142 F.3d at 240.

[FN39]. Fielder, 281 F.3d 973, 985-986.

[FN40]. Huckabay, 142 F.3d at 238-239; Kilpatrick v. Riley, 98 F.Supp.2d 9, 16 (D.D.C. 2000)

[FN41]. Palmer, 17 F.3d at 1496.

[FN42]. Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 481 (3rd Cir. 1997); Calloway, 986 F.2d at 448.

[FN43]. Calloway, 986 F.2d at 448, Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796 (11th Cir. 1992). The payment of discriminatory wages, for example, is a continuing violation. Thus, when an African-American employee is paid low wages because of his or her race, when similarly situated white employees are paid more, the violation occurs on each day the African-American employee is paid less that the white employee. The violation is not limited to the decision to pay such wages. Bazemore, 478 U.S. at 395-396. See also Calloway, 986 F.2d at 446, 448.

Likewise, the granting or denying of benefits to employees based on prohibited criteria such as race is likewise a continuing violation. Beavers, 975 F.2d at 798.
However, disparate impact caused by seniority systems is expressly excluded by Title VII. 42 U.S.C. § 2000e-2(h); Lorance, 490 U.S. at 903-906; Beavers, 975 F.2d at 799.

[FN44]. Rush, 113 F.3d at 483-485.

[FN45]. The Seventh Circuit has recognized a third type of continuing violation: where the date of the discrimination in the employer's decision-making process is difficult to pinpoint. Place, 215 F.3d 803, 808. Rather than a continuing violation, however, it is more analogous to the “discovery rule.”

[FN46]. Sabree, 921 F.2d at 400; Kilpatrick, 98 F.Supp.2d at 16.

[FN47]. Palmer, 17 F.3d at 1496.

[FN48]. Jenson, 130 F.3d at 1303; Fielder, 281 F.3d 973, 983; Rush, 113 F.3d at 482.

[FN49]. See, e.g., Filipovic, 176 F.3d at 395-396; Huckabay, 142 F.3d at 239.

[FN50]. Hurley v. Atlantic City Police Dept., 174 F.3d 95, 112 (3d Cir. 1999).

[FN51]. Filipovic, 176 F.3d at 395-396 (quoting Galloway v. General Motors Serv Parts Operations, 78 F.3d 1164, 1167 (7th Cir 1996); Bullington, 186 F.3d at 1310-1311; Rush, 113 F.3d at 483; Huckabay, 142 F.3d at 239.

[FN52]. Waltman v. International Paper Co., 875 F.2d 468, 476 (5th Cir. 1989).

[FN53]. Quinn, 159 F.3d at 165.

[FN54]. Huckabay, 142 F.3d at 239-240.

[FN55]. Place, 215 F.3d at 807.

[FN56]. See, e.g., Jenson, 130 F.3d at 1303.

[FN57]. Sosa v. Kiraoka, 920 F.2d 1451 (9th Cir. 1990).

[FN58]. See, e.g., Huckabay, 142 F.3d at 238-239.

[FN59]. Place, 215 F.3d at 808.

[FN60]. West, 45 F.3d at 754-757.

[FN61]. Sabree, 921 F.2d at 401.

[FN62]. Sabree, 921 F.2d at 402.

[FN63]. N.J.S.A. 10:5-1, et seq.

[FN64]. Erickson v. Marsh & McLennan Co., 117 N.J. 539, 555-556 (1990). For the exact parameters of what constitutes a hostile work environment under the LAD, see Lehman, 132 N.J. at 587.

While New Jersey's Courts have applied the hostile work analysis most often in cases of gender discrimination, it is equally applicable when the harassment is motivated by plaintiff's membership in any other protected class, such as race. See, e.g., Taylor v. Metzger, 152 N.J. 490, 598 (1998)(applying the standard for evaluating claims of sexual harassment set forth in Lehman, 132 N.J. at 603-604, to harassment based on race).

[FN65]. Montell v. Haynes, 133 N.J. 282 (1992).

[FN66]. See, Ali v. Rutgers, 166 N.J. 280, 285-287 (2000).

[FN67]. Wilson v. Wal-Mart Stores, 158 N.J. 263, 272-275 (1999); Terry v. Mercer County Bd. of Chosen Freeholders, 173 N.J. Super. 249, 253 (App. Div. 1980), aff'd, 86 N.J. 141 (1981)(cited with favor by the Wilson court). New Jersey also has an analogous “continuing tort doctrine” on claims unrelated to discrimination. Bolinger v. Bell Atlantic, 330 N.J. Super. 300, 306 (App. Div. 2000).

[FN68]. Lehman, 132 N.J. at 607. New Jersey's Supreme Court has reaffirmed that in determining what materials are subject to discovery in a sexual harassment suit, the reviewing Court must look to Lehman. Payton v. New Jersey Turnpike Auth., 148 N.J. 524, 535 (1997).

[FN69]. Wilson, 158 N.J. at 272-275; Ali, 166 N.J. at 285-287; Terry, 173 N.J. Super. at 253 (App. Div. 1980)(damages recoverable back to 1970). See also Chou v. Rutgers, 283 N.J. Super. 524, 536-537 (App. Div. 1995)(allegations of discriminatory conduct which dated back to 1975 not barred by the statute of limitations).

[FN70]. Wilson, 158 N.J. at 265-269, 272-274. See also Chou, 283 N.J. Super. at 536-537 (allowing damages allegations of discriminatory conduct which dated back to 1975.) Claims accruing prior to the Wilson decision were subject to a six year statute of limitations. Bolinger, 330 N.J. Super. at 305. Certain later claims are also subject to the six year period. See Ali, 166 N.J. at 285-287.

[FN71]. Lehman, 132 N.J. at 607.

[FN72]. Lehman, 132 N.J. at 615.

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