On April 1, 2013, the United States Supreme Court declined to resolve a purported circuit split on the applicability of the “continuing violation” doctrine to allegations of systemic violations of Title VII of the 1964 Civil Rights Act. In denying the petition filed by several Asian American police officers employed by the Port Authority of New York and New Jersey, the Court left intact a Second Circuit Court of Appeals ruling that “failure-to-promote” claims for discrete acts occurring outside of the limitations period were time barred and could not be saved by the continuing violation doctrine.
The continuing violation doctrine is an exception to the Title VII limitations period under which an employment discrimination plaintiff may challenge incidents occurring outside of the limitations period if the various acts of discrimination constitute a continuing pattern of discrimination.
In Chin v. Port Authority of N.Y. & N.J., the plaintiff officers sued the Port Authority claiming that it violated Title VII by failing to promote them to sergeant even after they had all the necessary eligibility examinations. After a jury found for seven of the eleven plaintiffs and awarded them back pay, compensatory damages and certain equitable relief, the Port Authority appealed and argued, in part, that the district court erred in considering promotion decisions made before August 2, 2000 (which was 180 days prior to the filing of the plaintiffs’ charge with the Equal Employment Opportunity Commission).
The Second Circuit Court of Appeals upheld the jury verdict finding that race discrimination had occurred, but vacated the jury’s award of back pay and damages, as well as the district court’s award of equitable relief, because those awards were based upon promotion decisions occurring outside of the 180-day limitations period. Relying on the U.S. Supreme Court case National Railroad Passenger Corp. v. Morgan, the Second Circuit ruled that the continuing violation doctrine does not apply to failures to promote because they are considered “discrete acts” of discrimination. In Morgan, the Supreme Court rejected the view that a series or pattern of “related discrete acts” could constitute on continuous unlawful employment practice.
In seeking review, the plaintiffs asked the Supreme Court to resolve a split amongst the federal circuit courts as to whether the continuing violation doctrine applies to an employer’s alleged systemic violation in light of the Supreme Court’s decision in Morgan. According to the plaintiffs, the First, Sixth, and Ninth circuits continue to apply the doctrine where an employer maintains a discriminatory policy or practice that is enforced through individual “discrete” acts.
The Second, Eighth, and Tenth circuits have interpreted Morgan to mean that the continuing violation doctrine cannot be applied to permit consideration of “discrete acts” of alleged discrimination, such as termination, failure to promote, denial of transfer, or refusal to hire when such acts occur outside of the limitations period, even if those acts are related to employment decisions attacked in a timely filed charge. Each “discrete act” constitutes a separate actionable employment practice which starts a new limitations period for filing charges based upon that act.