In Morgan v. National Railroad Passenger Corp., 2000 U.S. App. Lexis 27874, the Ninth Circuit Court of Appeals confirmed that the “continuing violation doctrine” may be used in Title VII cases to allow plaintiffs, in proving discrimination, to rely on conduct that occurred before the limitations period.
Morgan filed a Title VII claim on February 27, 1995, alleging he suffered discrimination and retaliation and endured a hostile work environment due to his race. The trial court held that the employer could not be liable for conduct that occurred prior to May 3, 1994, because such conduct was outside the 300-day limitations period (Morgan had to file his EEOC complaint within 300 days of the EEOC violation and Title VII’s limitation period generally limits liability to conduct occurring within the applicable limitations period, i.e. the preceding 300 days). Therefore, evidence of employer’s conduct before May 3, 1994, was not presented to the jury. Following a jury verdict for the employer, Morgan appealed.
Morgan argued on appeal that the trial court erred in not applying the continuing violations doctrine. This doctrine allows courts to consider conduct that occurred before the limitations period "as long as the untimely incidents represent an ongoing unlawful employment practice." The doctrine applies even though the employer’s behavior was such that a reasonable person would have been on notice that his rights were violated.
A continuing violation can be established in one of two ways. The plaintiff can show a serial violation – a series of acts that occurred prior to the limitations period that are related to acts that occurred during the limitations period. The plaintiff can also show a systemic violation – a company-wide policy or practice of discrimination that operated, in part, within the limitations period.
The Court of Appeals determined that questions of fact existed as to whether the employer had committed continuing violations of Title VII. It applied the continuing violation doctrine to each of Morgan’s claims:
1) Discrimination – The evidence showed a consistent pattern (throughout five-years of employment) of discriminatory conduct including numerous questionable disciplinary actions and denials of career opportunities. The incidents were not discrete or isolated and there was abundant evidence from other employees and management regarding a racially discriminatory atmosphere.
2) Hostile work environment – Evidence of a hostile work environment both before and during the limitations period included hiring Morgan at a lower pay-grade than others, multiple disciplinary actions, multiple denials of training, use of racially derogatory language, and an overall racially-laden environment.
3) Retaliation – Before and during the limitations period, Morgan made numerous complaints to his employer’s internal Equal Employment Office, as well as to outside authorities. These complaints were frequently followed, within a short time, by discipline on unrelated charges. The Court noted that these incidents involved the same managers and demonstrated a regular pattern of potentially retaliatory conduct.
Viewing the pre-limitations events in the context of the totality of Morgan’s relationship with his employer, the Court of Appeals concluded that “it is apparent that they are part of a series or pattern of discrimination, retaliation, and hostile environment that occurred throughout Morgan’s employment.” The Court of Appeals gave Morgan a new trial because the pre-limitations conduct should have been presented to the jury as background information and for the purposes of showing liability.
Legal Alert Email Disclaimer
Legal Alerts are published by Kronick Moskovitz Tiedemann & Girard as a timely reporting service to alert clients and other friends of recent changes in case law, opinions or codes. This alert does not represent the legal opinion of the firm or any member of the firm on the issues described, and the information contained in this publication should not be construed as legal advice. Should further analysis or explanation of the subject matter be required, please contact the attorney with whom you normally consult.