Federal and state anti-discrimination laws have short statutes of limitations. There are significant reasons for this, including fairness to employees and the preservation of evidence which, in the employment setting, can disappear quickly with employee departures and the like. But an important exception to the protection of short limitation periods is the “continuing violation” rule by which incidents that occurred outside of an expired statute of limitations period can be “resurrected” and aggregated with incidents that occurred during the period. This is allowed, in very general terms, when the acts on either side of the statute of limitations show a “persistent, ongoing pattern” of discrimination. Under the “continuing violation” rules, even a single act within the statute of limitations can bring in actions outside the period if the Court finds that such a “persistent, ongoing pattern” exists.
For an employer, this is a dangerous possibility. But it is far from a blanket rule and cases and administration guidance provide considerable refinement, definition and protections. Also, the rule has different application in different states, agencies, and federal circuits.
Takeaway: An employer should at least have an “antenna up” for the possible application of a “continuing violation” rule when reviewing whether a newly reported incident could fit a “persistent, ongoing pattern” of discrimination given similar incidents reported by the employee years prior. If that could be the case, consult legal counsel to see whether the “continuing violation” theory could apply and, perhaps, require more preemptive and protective action than the new incident itself may otherwise merit.