The question arrises in many discrimination cases how far back can the plaintiff go in presenting relevant evidence? Title VII itself provides that a complainant must file his/her complaint within 300 days of the act of discrimination. Can the plaintiff present evidence of harassing conduct before that 300 days started? Yes, of course. The theory of “continuing violation” has been around a long time.In Heath v. Board of Supervisors for Southern University, 850 F.3d 731 (5th Cir. 2017), Prof. Heath was a professor at Southern University. In her lawsuit, she alleged a male supervisor had harassed her for ten years before she field her complaint. in her lawsuit, the district court refused to allow evidence of harassment older than 300 days.
The court noted that in cases alleging hostile work environment, a plaintiff can generally present evidence of harassment older than 300 days, so long as one act of harassment does fall within the 300 day window. But, the lower court refused to treat Prof. Heath’s situation as continuing. Prof. Heath left the school on a sabbatical. So, said the lower court, harassment prior to the sabbatical could not be included in her lawsuit.
In looking at continuing violation, the lower court applied a three part test: 1) whether the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; 2) whether the alleged acts are recurring or more in the nature of an isolated work assignment or incident; and 3) whether the act has the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights. The district court focused on the third factor when it granted the defendant’s motion for summary judgment.
But, this test was used by Fifth Circuit decisions prior to the decision in National R.R. Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Pre-Morgan caselaw noted that the third factor was the most important. The Morgan case make an important distinction. It distinguishes discrete acts of traditional discrimination from hostile work environment claims. The human dynamics of harassment by a co-worker are different from those of a supervisor. Claims based on traditional discrete acts of discrimination are not subject to the continuing violation theory. Claims based on hostile work environment are.
As the Heath court noted, a hostile work environment claim is one based on death by a thousand cuts, not by one discrete act. In a hostile work environment, no one act can be pointed to as the one “unlawful employment practice.”
More importantly, the decision in Morgan rejected the view of circuits like the Fifth Circuit that formerly held that “the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.” So, the Fifth Circuit recognized that the Fifth Circuit’s pre-Morgan test for the continuing violation doctrine was implicitly overruled to the extent prior cases held that the continuing violation doctrine does not apply when an employee was or should have been aware earlier of a duty to assert her rights. That the employee was on notice or not that an act of harassment gave rise to a valid claim is not relevant.
See the Fifth Circuit decision here.