Amicus Curiae Brief — National Railroad Passenger Corporation v. Morgan
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7
Au 2 me N AUG Er 10
N 1614
0.
In the Supreme Court of the United States
NATIONAL RAILROAD PASSENGER CORPORATION,
PETITIONER
Vv.
ABNER MORGAN, JR.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
THEODORE B. OLSON
Solicitor General
Counsel of Record
STUART E. SCHIFFER
Acting Assistant Attorney
General
PAUL D. CLEMENT
Deputy Solicitor General
AUSTIN C. SCHLICK
Assistant to the Solicitor
General
MARLEIGH D. DOVER
JOHN C. HOYLE
- Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the court of appeals erred in holding that a
plaintiff may recover under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. 2000e et seq., for unlawful employment
practices that are outside the statutory charge-filing period,
if the practices were “sufficient! related” to unlawful prac-
tices that occurred within the period.
(I)
TABLE OF CONTENTS
Interest the United States
Statement
Summary of argument
Argument:
A Title VII claimant may recover for a violation
that occurred within the charge-filing period despite
earlier notice of the unlawful employment practice,
but may not recover for a violation that occurred
outside the charge-filing period
A. Title VII violations that continue into the
charge-filing period remain actionable despite the
claimant’s prior notice of the violation
B. Neither caps on back pay nor damages provisions
demonstrate that Congress intended to allow
recovery for unlawful practices that occurred
outside the charge-filing period
C. Respondent may not recover for discrimination
that occurred outside the 300-day charge-filing
period
Conclusion
TABLE OF AUTHORITIES
Cases:
Agency Holding Corp. v. Malley-Duff & Assocs., Inc.,
483 U.S. 143 (1987)
Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975)
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680
(1946)
Anderson v. Reno, 190 F.3d 980 (9th Cir. 1999) ..............
Anisman v. ONeill, Appeal No. 01994634, 2001 WL
402498 (EEOC Apr. 12, 2001)
Baldwin County Welcome Ctr. v. Brown, 446 US.
147 (1984)
Bazemore v. Friday, 478 U.S. 385 (1986)
(III)
wie
11
11
21
17
IV
Cases—Continued: Page
Berry v. Board of Supervisors of L.S.U., 715 F.2d
971 (5th Cir. 1983) 8, 22-23
Bowen Prods. Corp., 113 N.L.R.B. 731 (1955) 15
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742
(1998) 19
Cada v. Baxter Healthcare Corp., 920 F 2d 446
(7th Cir. 1990), cert. denied, 501 U.S. 1261 (1991) 21, 22
Culpepper v. Reynolds Metals Co., 296 F. Supp.
1232 (N. D. Ga. 1968), rev’d in part on other
grounds, 421 F. 2d 888 (5th Cir. 1970) 17
Dasgupta v. University of Wis. Bd. of Regents, 121
F.3d 1138 (7th Cir. 1997) 20
Delaware State College v. Ricks, 449 U.S. 250
(1980) 18, 20
EEOC v. Shell Oil Co., 466 U.S. 54 (1984) 19
FTC v. Cement Inst., 333 U.S. 683 (1948) ; 27
Fielder v. UAL Corp., 218 F.3d 973 (9th Cir.
2000), petition for cert. pending, No. 00-1397 (filed
Mar. 7, 2001) 7-8
Franks v. Bowman Transp. Co., 424 U.S. 747
(1976) 14
Frazier v. Delco Elecs. Corp., No. 99-2710, 2001 WL
964933 (7th Cir. Aug. 24, 2001) 20
Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374
(7th Cir. 2000) 20
Galloway v. General Motors Serv. Parts Operations,
78 F.3d 1164 (7th Cir. 1996) 6
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ........... — 19
Hanover Shoe, Inc. v. United Shoe Mach. Corp.,
392 U.S. 481 (1968) 12
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) 27
Havens Realty Corp. v. Coleman, 455 U.S. 363
(1982) 18, 19, 20
Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001) 20
Jamison v. Olga Coal Co., 335 F. Supp. 454
(S.D. W. Va. 1971) 16
Cases—Continued:
Johnson v. Goodyear Tire & Rubber Co., 349
F. Supp. 3 (S.D. Tex. 1972), rev’d in part, 491 F.2d
1364 (5th Cir. 1974)
Johnson v. Nyack Hosp., 891 F. Supp. 155
(S.D.N.Y. 1995), aff’d, 86 F.3d 8 (2d Cir. 1996) ................
Katz v. NLRB, 196 F. 2d 411 (9th Cir. 1952)
Klehr v. A O. Smith Corp., 521 U.S. 1.9 (1997
Local Lodge No. 1424, Int l Ass N of Machinists v.
NLRB (Bryan Mfg.), 362 U.S. 411 (1960)
Lorance v. AT&T Techs., Inc., 490 U.S. 900
14
12
12, 15
(1989) 13, 14, 17, 18
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574 (1986)
Melville Confections, Inc., 142 N.L.R.B. 1334 (1963),
enforced, 327 F. 2d 689 (7th Cir.), cert. denied, 377
U.S. 983 (1964)
Minor v. Ivy Tech State College, 174 F.3d 855
(7th Cir. 1999)
Mizson v. Southern Bell Tel. & Tel. Co., 334
F. Supp. 525 (N. D. Ga. 1971)
Mohasco Corp. v. Silver, 447 U.S. 807 (1980)
NLRB v. Carpenters Local Union No. 1028, 232
F.2d 454 (10th Cir.), cert. denied, 352 U.S. 839
(1956)
NLRB v. Dallas Gen. Drivers, Local Union 745,
228 F. 2d 702 (5th Cir. 1956), cert. denied, 361 U.S.
814 (1959)
NLRB v. F. E. McGraw & Co., 206 F. 2d 635 (6th
Cir. 1953)
NLRB v. International Bhd. of Teamsters,
225 F 2d 343 (8th Cir. 1955)
NLRB v. Pennwoven, Inc., 194 F.2d 521 (3d Cir.
1952)
O’Rourke v. City of Providence, 235 F.3d 713 (Ist
Cir. 2001)
14
VI
—
Cases Continued:
Order of R. R. Telegruphers v. Railway Express
Agency, Inc., 321 U.S. 342 (1944)
Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380 (3d Cir. 1994)
Pennwoven, Inc., 94 N.L.R.B. 175 (1951), enforced,
194 F 2d 521 (3d Cir. 1952)
Pollard v. E. du Pont de Nemours & Co., 121
S. Ct. 1946 (2001)
Price Waterhouse v. Hopkins, 490 U.S. 228
(1989)
Sabree v. United Bhd. of Carpenters Local No. 33,
921 F 2d 396 (ist Cir. 1990)
Sciaraffa v. Oxford Paper Co., 310 F. Supp. 891
(D. Me. 1970)
Sowell v. Alumina Ceramics, Inc., 251 F.3d 678
(8th Cir. 2001)
Story Parchment Co. v. Paterson Parchment Paper
Co., 282 U.S. 555 (1931)
Tippet v. Liggett & Myers Tobacco Co., 316 F. Supp.
292 (M.D.N.C. 1970)
United Air Lines, Inc. v. Evans, 481 U.S. 553
17
(1977) 17, 18, 24, 27
United States v. Diebold, Inc., 369 U.S. 654
(1962)
United States v. Fresno Unified Sch. Dist., 592
F. 2d 1088 (9th Cir.), cert. denied, 444 U.S. 832
(1979)
United States v. Georgia Power Co., Civ. No. 12355,
1971 WL 162 N. D. Ga. June 30, 1971), rev'd in part,
474 F 2d 906 (5th Cir. 1973)
Van Steenburgh v. Rival Co., 171 F.3d 1155 (8th
Cir. 1999)
Watson v. Limbach Co., 338 F. Supp. 754 (S.D.
Ohio 1971)
Wolin v. Smith Barney Inc., 83 F.3d 847 (7th Cir.
1996) .
16, 17
— -
Vil
Cases—Continued: Page
Zenith Radio Corp. v. Hazeltine Research, Inc.,
401 US. 321 (1971) 12
Zipes v. TWA, 455 U.S. 385 (1982) 2, 13, 21
Statutes and regulation: Page
Civil Rights Act of 1964, Pub. L. No. 88-352, Tit. VII,
78 Stat. 253 (42 U.S.C. 2000e et seq.) passim
42 U.S.C. 2000e-5 (§ 706) 15, 23, 24
_ 42US.C. 2000e-5(e) (§ 706(e)) passim
42 U.S.C. 2000e-5(e)(1) 2,9
42 U.S.C. 2000e-5(f) 2,6
42 U.S. C. 2000e-5(g) (S 706(g)) 9, 10, 23, 25
42 U.S.C. 2000e-5(g)(1) 10, 23, 24
42 U.S.C. 2000e-6 (§ 707) 2, 10, 23, 24, 25
42 U.S.C. 2000e-6 note 2
42 U.S.C. 2000e-16 (1994 & Supp. V 1999) 2
Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.
1071:
§ 102, 105 Stat. 1072-1074 (42 U.S.C. 1981a) .......... 1, 10, 25
§ 112, 105 Stat. 1078-1079 (42 U.S.C. 2000e-5(e)(2)) .... 18
Equal Employment Opportunity Act of 1972, Pub. L.
No. 92-261, 86 Stat. 107 (42 U.S.C. 2000e-G(e)) 23
Fair Housing Act, 42 U.S.C. 3604 18
National Labor Relations Act, ch. 372, § 10(b), 49 Stat.
453-454 (29 U.S.C. 160(b)) 9, 13, 14, 16
42 U.S.C. 1983 20
29 C.F.R. 1601.13 2
Miscellaneous:
2 P. Areeda & H. Hovenkamp, Antitrust Law
(rev. ed 1995) 12
J. Carty, The Continuing Violation Theory of Title VII
After United Air Lines, Inc. v. Evans, 31 Hastings
LJ. 929 (1980) 24
117 Cong. Rec. (1971):
p. 31,973 24
p. 31,974 24
VIII
Miscellaneous Continued:
p. 31,979
p. 31,981
118 Cong. Rec. (1972):
p. 4940
1 — 5 et al., The Law of Torts (3d ed. f
H.R. Rep. No. 238, 92d Cong., Ist Sess. (1971) .......ceccsv«
18 W. Jaeger, Williston on Contracts (3d ed. 1978) ...........
D. Laycock, Continuing Violations, Disparate Impact
in Compensation, and Other Title VII Issues, 49
Law & Contemp. Probs. 53 (1986)
2 B. Lindemann et al., Employment Discrimination
Law (3d ed. 1996)
Note, Employment Discrimination and Title VII of
— a Rights Act of 1964, 84 Harv. L. Rev. 1109
38 Handbook of the Law of Torts (3d ed.
1964)
Restatement (Second) of Torts (1979)
S. Rep. No. 415, 92d Cong., Ist Sess. (1971)
In the Supreme Court of the United States
No. 00-1614
NATIONAL RAILROAD PASSENGER CORPORATION,
PETITIONER
U.
ABNER MORGAN, IR.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
Title VII of the Civil Rights Act of 1964, Pub. L. No.
88-352, 78 Stat. 253 (42 U.S.C. 2000e et seq.), prohibits em-
ployment discrimination on the basis of race, color, religion,
sex, or national origin, and authorizes equitable remedies
against both public and private employers that discriminate.
The Civil Rights Act of 1991, Pub. L. No. 102-166, § 102, 105
Stat. 1072-1074 (42 U.S.C. 1981a), authorizes, in cases of in-
tentional discrimination, the additional remedies of compen-
satory damages and (in suits against private employers)
punitive damages. The Attorney General of the United
States shares responsibility for enforcing Title VII with the
Equal Employment Opportunity Commission (EEOC). See
(1)
2
42 U.S.C. 2000e-5(f), 2000e-6 & note. In addition, Title VII
applies to the federal government in its capacity as the
nation’s largest employer. 42 U.S.C. 2000e-16 (1994 & Supp.
V 1999).
This case concerns the timeliness of charges filed with
the EEOC pursuant to Title VII. Petitioner challenges the
court of appeals’ holding that a Title VII claimant who al-
leges an unlawful employment practice that continued into
the charge-filing period may recover even for violations that
otherwise would be time-barred. The resolution of that issue
will directly affect the government’s responsibilities for
enforcing Title VII against private-sector and state and
municipal employers, and implicates the remedies that may
be awarded against the federal government as a Title VII
defendant.
STATEMENT
1. Section 706(e) of Title VII provides that an employ-
ment discrimination charge may be filed with the EEOC
“within one hundred and eighty days after the alleged un-
lawful employment practice occurred.” When there is a
state fair employment practice agency with overlapping jur-
isdiction (as is the case in most States), however, a charge
may be filed with the EEOC “within three hundred days
after the alleged unlawful employment practice occurred.”
42 U.S.C. 2000e-5(e)(1). If a complainant submits a charge
of discrimination to the EEOC based on employment prac-
tices that occurred in such a State, the 300-day filing period
applies and the EEOC refers the discrimination charge to
the appropriate state or local agency for processing. See 29
C.F.R. 1601.13. In Zipes v. TWA, 455 U.S. 385 (1982), this
Court held that Section 706(e)’s requirement of filing a
timely charge of discrimination with the EEOC operates as a
statute of limitations. Id. at 392-398.
2. In August 1990, petitioner hired respondent, an
African-American male, as an electrician’s helper at peti-
tioner’s Oakland Maintenance Yard. Pet. App. 6a-7a, 26a.
Respondent alleged that petitioner hired similarly qualified
and less-qualified white workers as electricians at a higher
rate of pay. Id. at 7a, 26a-2:7a; see 8/4/98 Pl. s Opp’n to Mot.
for Summ. J. 1. Respondent filed a union grievance, and
he was reclassified as an electrician in April 1992. Pet.
App. 26a.
Respondent alleged that petitioner “continuously discrimi-
nated against [him] during the entire time that he worked
for [respondent] in violation of Title VII.” Compl. para. 7.
Specifically, respondent claimed that in March 1991 he was
discriminatorily disciplined and ultimately lost ten days of
pay after he refused to attend a meeting with a supervisor
without having a union representative present. Pet. App.
7a, 27a-28a. Respondent also asserted that in August 1991
he was denied an equal opportunity to be considered for ad-
mission to petitioner’s apprenticeship program for em-
ployees seeking to become electricians. Id. at 7a-Sa, 28a. On
October 4, 1991, respondent sent a letter complaining of race
discrimination to petitioner’s Equal Employment Opportun-
ity (EEO) office. Jd. at 8a, 28a. On October 16, 1991, respon-
dent received written counseling for ignoring a direct order
to stop helping a co-worker. Ibid. Respondent protested the
counseling as racially motivated. Ibid.
In late 1991, respondent and other employees met with
their congressional representative to complain about dis-
crimination at the Oakland Maintenance Yard. Pet. App. 8a.
1 The court of appeals in this case reversed the district court’s grant
of partial summary judgment in favor of petitioner. See Pet. 6a, 21a.
Accordingly, “inferences to be drawn from the underlying facts . . . must
be viewed in the light most favorable to [respondent)].” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
Shortly thereafter, respondent received counseling for being
argumentative and threatening. Ibid.
On September 17, 1992, respondent received counseling
about absenteeism from Robert Vandenberg (the senior
manager at the Oakland yard) and from another superior.
Respondent asserted that some of the leave in question had
been approved in advance. Pet. App. 8a, 28a; 8/4/98 Pl. 's
Opp’n to Mot. for Summ. J. 3. In September and November
1992 respondent was ordered to do clean-up work that was
outside his job description. On December 1, 1992, respon-
dent received written counseling for failing to fulfill the
November assignment. Pet. App. 9a, 29a.
On May 21, 1993, respondent asked Vandenberg why his
name had been removed from a list of employees scheduled
for training. Vandenberg allegedly responded that respon-
dent lacked the mental capacity for the training. Pet. App.
29a. On May 25, 1993, respondent filed a complaint with
petitioner’s EEO office alleging racial discrimination and
retaliation. On May 30, 1993, respondent filed another com-
plaint with the EEO office. Id. at 9a-10a, 29a-30a.
On July 14, 1993, petitioner suspended respondent for 15
days for taking a day of leave without permission in May.
After respondent filed a complaint with the EEO office and a
grievance with his union, however, he was awarded back pay
and the suspension was ordered expunged from his record.
Pet. App. 9a, 29a-30a.
In October 1993, respondent was charged with making im-
proper remarks to a union representative. The charges were
dropped after a hearing and the incident was ordered ex-
punged from respondent’s file. Pet. App. 10a, 30a. Respon-
dent offered testimony that Vandenberg had asked another
employee to lie about the incident to support punishment of
respondent, saying that respondent was “going to be fired
anywayl].“ Jd. at 3la. Also in October 1993, respondent
accused Vandenberg of pushing him. Respondent filed a
complaint with petitioner’s EEO office based on that inci-
dent but he did not receive a response. Id. at 10a, 31a.
In December 1993, respondent’s scheduled training was
canceled. Respondent complained to the EEO office about
the cancellation but he again received no response. Pet.
App. IIa, 3la.
In January 1994, respondent had a dispute with his super-
visors about returning from sick leave. After respondent
filed a grievance, petitioner paid him for three days of work
that he lost as a result of the dispute. Pet. App. IIa, 3la-32a.
On September 9, 1994, respondent was charged with a vio-
lation of work rules for failing to complete a work assign-
ment. After a hearing, respondent was suspended for 15
days. Respondent alleged that petitioner did not discipline a
white electrician who failed to finish a similar assignment
given at the same time, and that his own suspension violated
petitioner’s disciplinary policy. Pet. App. lla, 32a-33a. In
October 1994, respondent was again denied training, again
complained to petitioner’s EEO office, and again received no
response. Id. at 11a, 35a.
On February 5, 1995, a foreman reported that respondent
threatened him. Respondent alleged that a supervisor then
told him to get his “black ass” into the supervisor’s office.
Respondent refused to discuss the matter with the super-
visor without a union representative and left work. After a
hearing, respondent was terminated from his job because of
that incident. Pet. App. 1la-12a, 33a-34a.
In addition to the specific incidents discussed above, re-
spondent alleged that employees and supervisors at the
Oakland facility made racial jokes and derogatory comments
and directed racial slurs and epithets at African-Americans.
Pet. App. 12a.
3. On February 27, 1995—before the hearing that
resulted in termination of respondent’s employment—
respondent filed charges against petitioner with the EEOC,
alleging discrimination and retaliation. Respondent also
filed charges with the California Department of Fair Em-
ployment and Housing. Pet. App. 13a, 36a-37a. On July 3,
1996, the EEOC issued respondent a notice of right to sue.
On October 2, 1996, respondent filed suit in the United
States District Court for the Northern District of California.
Id. at 18a, 37a; see generally 42 U.S.C. 2000e-5(f). In his
complaint, respondent sought compensatory and punitive
damages, reinstatement, back pay, front pay, expungement
of records from his file, and attorney’s fees. Compl. 4-5.
The district court granted in part and denied in part
petitioner’s motion for summary judgment. Pet. App. 25a-
52a. The district court held that, under Section 706(e) of
Title VII, 42 U.S.C. 2000e-5(e), respondent could not recover
for conduct that occurred before May 3, 1994 (300 days be-
fore February 27, 1995, when respondent filed his charge
with the EEOC). Pet. App. 38a-40a, 51a-52a. The district
court found that respondent “believed as early as 1991 that
[petitioner] and its managers were discriminating against
him on the basis of his race and retaliating against him for
his complaints,” and that throughout 1992, 1993, and 1994,
respondent complained of discrimination and retaliation. Id.
at 39a-40a. The district court also invoked Galloway v.
General Motors Service Parts Operations, 78 F.3d 1164
(1996), in which the Seventh Circuit held that a Title VII
plaintiff may not recover for conduct that occurred outside
the charge-filing period unless “it would have been
unreasonable to expect the plaintiff to sue before the statute
ran on that conduct, as in a case in which the conduct could
constitute, or be recognized, as actionable * * * only in the
light of events that occurred later, within the period of the
statute of limitations.” Id. at 1167. Based on its factual
findings and the reasoning of Galloway, the district court
concluded that respondent’s claims for the period before May
3, 1994, were time-barred because respondent’s awareness of
7
the alleged violations “triggered * * * [a] duty to assert his
rights.” Pet. App. 38a-39a. The court emphasized, however,
that its ruling only precluded respondent from recovering
for acts before the limitations period. It did not entirely
preclude respondent’s suit and respondent could “present{]
evidence of acts that occurred prior to the limitations period
if they are relevant to his timely claims of discrimination and
retaliation.” Id. at 40a-41a n.9.
The district court then rejected respondent’s allegations
which, although timely, were not embraced within respon-
dent’s EEOC charges. Pet. App. 41a-44a. The district court
dismissed other timely claims because respondent failed to
present facts that would support them. Id. at 49a-5la. But
the district court allowed respondent to proceed to trial on
claims relating to his September 1994 suspension for failing
to complete a work assignment, the October 1994 cancella-
tion of training, and the February 1995 discharge. Id. at 44a-
49a, 52a. The jury returned a verdict for petitioner on each
of those claims. Id. at 13a.
4. The court of appeals reversed and remanded for a new
trial because it concluded the “pre-limitations period conduct
should have been presented to the jury not merely as back-
ground information, but also for purposes [of] liability.” Pet.
App. 21a.
The court of appeals rested its decision on the continuing
violation doctrine, which, it said, “allows courts to consider
conduct that would ordinarily be time barred ‘as long as the
untimely incidents represent an ongoing unlawful employ-
ment practice“ Pet. App. 14a (quoting Anderson v. Reno,
190 F.3d 930, 936 (9th Cir. 1999)). The court of appeals rej-
ected (id. at 14a-15a) the district court’s reliance on Gallo-
way, stating that the Seventh Circuit’s approach was incon-
sistent with Ninth Circuit cases that rejected “a strict notice
requirement as the litmus test for application of the con-
tinuing violation doctrine.” Id. at 15a; see Fielder v. UAL
Corp., 218 F.3d 973, 987 n.10 (9th Cir. 2000), petition for cert.
pending, No. 00-1397 (filed Mar. 7, 2001).
The court of appeals also rejected (Pet. App. 15a) the ap-
proach to the continuing violation doctrine developed by the
Fifth Circuit in Berry v. Board of Supervisors of L. S. U., 715
F.2d 971 (1983), which several other circuits have followed,
see O Rourke v. City of Providence, 235 F.3d 713, 731 (Ist
Cir. 2001) (citing cases). In Berry, the Fifth Circuit
identified factors that it deemed relevant to whether a Title
VII plaintiff may recover for an occurrence outside the limi-
tations period by virtue of its relationship to occurrences
within the limitations period. One factor, “perhaps of most
importance,” is whether the acts that occurred prior to the
limitations period had a “degree of permanence” that should
have put the plaintiff on notice of his claim. 715 F.2d at 981.
The court of appeals in this case rejected consideration of
that factor. In the Ninth Circuit, the court stated, the
continuing violation doctrine applies “[e]ven though * * * a
reasonable person would have been on notice” before the
limitations period “that her rights were violated.” Pet. App.
15a.
The court of appeals concluded that the alleged violations
of Title VII before May 3, 1994, were actionable because
they were “sufficiently related to the post-limitations con-
duct to invoke the continuing violation doctrine.” Pet. App.
18a-21a. In addition, the court of appeals vacated the jury’s
verdict in favor of petitioner on claims within the limitations
period. Ibid. The court suggested (id. at 21a-22a) that the
jury’s verdict might have been tainted by evidentiary rul-
ings that arose from the district court’s exclusion of claims
outside the limitations period. Accordingly, the court of
appeals remanded for a new trial encompassing alleged
violations both before and after the May 3, 1994, limitations
date.
SUMMARY OF ARGUMENT
1. As applied in antitrust, torts, and contracts, the con-
tinuing violation doctrine allows a plaintiff to recover for a
violation that occurs within the limitations period even if he
knew or should have known of the defendant’s illegal course
of conduct much earlier. There must, however, be an
actionable violation within the limitations period, and the
plaintiff may not recover for violations, even related ones,
that occurred outside the limitations period.
The plain language of Section 706(e)—which directs Title
VII claimants to file their charges with the EEOC within
either 180 days or 300 days “after the alleged unlawful
employment practice occurred,” 42 U.S.C. 2000e-5(e)(1)
—accords with the traditional continuing violation doctrine.
That doctrine, moreover, has been applied under Section
10(b) of the National Labor Relations Act (NLRA), ch. 372,
49 Stat. 453-454 (29 U.S.C. 160(b)), which Congress used as
its model for Title VII’s remedial provisions. And that doc-
trine is consistent with this Court’s decisions applying
Section 706(e), which allow recovery for discrimination that
occurs within the charge-filing period despite earlier notice
of the allegedly unlawful practice, but do not allow recovery
for violations that occurred outside the charge-filing period.
The traditional rule furthers the remedial purposes
underlying Title VII and balances the interests of Title VII
plaintiffs and defendants. Employers always have an
incentive to comply with Title VII, because their ongoing
violations remain actionable. Prohibiting recovery on pre-
limitations claims, however, encourages potential plaintiffs
to bring their claims promptly and protects employers
against having to defend against stale claims.
2. Nothing in Title VII is inconsistent with the tradi-
tional continuing violation doctrine. Section 706(g), which
provides that Iblack pay liability shall not accrue from a
10
date more than two years prior to the filing of a charge with
the Commission,” 42 U.S.C. 2000e-5(g)(1), sets an outer limit
on back pay but does not prohibit application of a limitations
period of less than two years. The legislative history of
Section 706(g) does not suggest that Congress meant to
foreclose appiication of the traditional continuing violation
rule. Finally, the two-year restriction is not surplusage even
if recovery generally is limited to violations that occurred
within the charge-filing period; the 300-day limitation may
sometimes be equitably tolled, and it does not apply to
suits by the Attorney General under Section 707, 42 U.S.C.
2000e-6. There similarly is no inconsistency between the
dollar caps that Congress placed on compensatory and
punitive damages in Title VII cases, see 42 U.S.C. 198la, and
a temporal requirement restricting recovery to violations
3. The court of appeals’ holding in this case is incon-
sistent with the traditional continuing violation doctrine.
Contrary to the Ninth Circuit’s analysis, respondent may not
recover for alleged violations that occurred outside the 300-
day limitations period (i.e., before May 3, 1994), although
those actions may be relevant evidence about respondent’s
conduct during the limitations period.
11
ARGUMENT
A TITLE VII CLAIMANT MAY RECOVER FOR A
VIOLATION THAT OCCURRED WITHIN THE CHARGE-
FILING PERIOD DESPITE EARLIER NOTICE OF THE
UNLAWFUL EMPLOYMENT PRACTICE, BUT MAY NOT
RECOVER FOR A VIOLATION THAT OCCURRED
OUTSIDE THE CHARGE-FILING PERIOD
A. Title VII Violations That Continue Into The Charge-
Filing Period Remain Actionable Despite The Claim-
ant’s Prior Notice Of The Violation
A claimant’s prior notice of an ongoing Title VII violation
does not deprive the claimant of the ability to recover for
violations that continue into the charge-filing period. It is
well-settled in antitrust, tort, and contract cases that a
private plaintiff may recover for a violation that continues
into the limitations period, even if the plaintiff knew or.
should have known of the illegal course of conduct much
earlier and outside the limitations period. The text of Title
VII and its legislative history are consistent with that
traditional rule. Section 706(e) states simply that the po-
tential plaintiff shall file any charge with the EEOC within
180 or 300 days “after the alleged unlawful employment
practice occurred.” 42 U.S.C. 2000e-5(e). Nothing in the
language or history of Section 706(e) indicates that Congress
intended to preclude suits that challenge ongoing violations.
Accordingly, when an unlawful employment practice con-
tinues into the applicable charge-filing period, the plaintiff
may seek redress for that violation, without regard to when
the plaintiff knew or should have known of the practice.
1. In its usual form, the so-called continuing violation
doctrine allows a suit that might otherwise be barred by the
12
statute of limitations to proceed, although the plaintiff may
not recover for injury that occurred outside the limitations
period. In the case of an ongoing antitrust violation, such as
a price-fixing conspiracy, “‘each overt act that is part of the
violation and that injures the plaintiff,’ e. g., each sale to the
plaintiff, ‘starts the statutory [limitations] period running
again, regardless of the plaintiff's knowledge of the alleged
illegality at much earlier times.’ * * * But the commission
of a separate new overt act generally does not permit the
plaintiff to recover for the injury caused by the old overt acts
outside the limitations period.” Klehr v. A.O. Smith Corp.,
521 U.S. 179, 189 (1997) (quoting 2 P. Areeda & H.
Hovenkamp, Antitrust Law 1 338b, at 145 (rev. ed. 1995));
see Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S.
481, 502 & n.15 (1968) (“Although Hanover could have sued
{under the Sherman Act] in 1912 for the injury then being
inflicted, it was equally entitled to sue in 1955” for damages
within the limitations period.). The continuing violation doc-
trine therefore provides that each successive illegal act
resets the date at which the statute of limitations begins to
run. See Zenith Radio Corp. v. Hazeltine Research, Inc.,
401 U.S. 321, 338-339 (1971).
A similar rule applies in tort law. See Restatement
(Second) of Torts § 899, at 441-444, emts. e, d (1979). In
nuisance cases, for instance, “each day’s continuance of a
temporary nuisance creates a new cause of action,” and,
therefore, “the statute of limitations begins to run day by
day, and plaintiff may at any time recover for the nuisance
committed during the statutory period next before the
bringing of the action.” 1 F. Harper et al., The Law of Torts
2 Different limitations rules apply in criminal conspiracy cases. See
Local Lodge No. 1424, Int l Ass'n of Machinists v. NLRB (Bryan Mfg.),
362 U.S. 411, 423-424 n.15 (1960); Agency Holding Corp. v. Malley-Duff &
Assocs., Inc., 483 U.S. 143, 155-156 (1987) (RICO).
13
§ 1.30, at 1:139 (8d ed. 1996); see also W. Prosser, Handbook
of the Law of Torts 616 (3d ed. 1964) (noting that “a con-
tinuing trespass, such as the erection of a structure on the
plaintiffs land, affords a continuing cause of action, which
— hardly be distinguished from nuisance”) (footnote omit-
).
So too, in contracts, the applicable statute of limitations
generally begins to run as soon as each claim accrues, and
the occurrence of similar or continuing breaches does not
revive untimely claims. For instance, if performance is
required in discrete parts over a period of time, and a timely
action is not brought to challenge an initial breach, future
recovery for the initial breach is barred, although recovery
on later breaches that occurred within the limitations period
is possible. See generally 18 W. Jaeger, Williston on
Contracts §§ 2026-2029, at 782-817 (3d ed. 1978).
Of particular relevance is the rule’s application under Sec-
tion 10(b) of the National Labor Relations Act (NLRA), ch.
372, 49 Stat. 453-454 (29 U.S.C. 160(b)). Just as other reme-
dial provisions of Title VII were modeled on the NLRA, see
Albemarle Paper Co. v. Moody, 422 U.S. 405, 419 & n.11
(1975), Section 706(e) has its origin in Section 10(b) of the
NLRA. See Lorance v. AT&T Techs., Inc., 490 U.S. 900,
909-910 (1989). This Court has held that the time limitations
of Section 706(e) should be treated in the same manner as
those contained in the NLRA. Zipes v. TWA, 455 U.S. 385,
395 n.11 (1982). “Such reliance is particularly appropriate in
the context presented here, since the highly unusual feature
of requiring an administrative complaint before a civil action
8 Section 10(b) of the NLRA provides, in relevant part, that “[n]o com-
plaint shall issue based upon any unfair labor practice occurring more than
six months prior to the filing of [a] charge with the [National Labor
Relations) Board and the service of a copy thereof upon the person against
whom such charge is made.” 29 U.S.C. 160(b).
14
can be filed against a private party is common to the two
statutes.” Lorance, 490 U.S. at 909. And when interpreting
Section 706(e), “reference must be made to actual operation
and experience * * in administering the [NLRA].“
Franks v. Bowman Transp. Co., 424 U.S. 747, 774-775 n.34
(1976); ef. Pollard v. E. I. du Pont de Nemours & Co., 121 8.
Ct. 1946, 1950 (2001) (construction of NLRA Section 10(c)
before enactment of Civil Rights Act of 1964 provides
“guidance as to the proper meaning of the same language in
§ 706(g) of Title VII”).
By 1964, when Congress looked to the NLRA in drafting
Title VII, it was established that Section 10(b)’s six-month
limitations period was subject to the traditional continuing
violation doctrine. An unfair labor practice that occurred
within the six-month period could be challenged even if
a charge alleging the same violation, or a similar and related
violation, could have been brought before the six-month
period. But a charge could not be brought outside the limi-
Fg., NLRB v. Carpenters Local Union No. 1028, 232 F. 2d 454, 456
(10th Cir.) (discriminatory enforcement of closed-shop agreement during
limitations period satisfies Section 10(b)), cert. denied, 352 U.S. 839 (1956);
NLRB v. Dallas Gen. Drivers, Local Union 745, 228 F.2d 702, 705 (5th
Cir. 1956) (II the contract provision giving the Union sole power to
settle seniority disputes violated the Act, or if the Union exercised that
power discriminatorily, each time it did so constituted a separate and dis-
tinct act, whether or not the decision so to act was made outside the six-
month period.”), cert. denied, 361 U.S. 814 (1959); NLRB v. International
Bhd. of Teamsters, 225 F.2d 348, 345-346 (8th Cir. 1955) (rejecting argu-
ment that employees had notice of discriminatory seniority system before
the limitations period); NLRB v. F.H. McGraw & Co., 206 F.2d 635, 639
(6th Cir. 1953) (finding a “continuing offense” where “the unfair labor
practice alleged in the complaint was not the execution of this contract,
but its enforcement and implementation * * * within the period of
limitations”); Katz v. NLRB, 196 F.2d 411, 415 (9th Cir. 1952) (“continued
and continuous enforcement” of illegal union shop agreement constituted
continuing violation); Melville Confections, Inc., 142 N.L.R.B. 1334, 1335
15
tations period when the alleged unfair labor practice was
“fully consummated” and caused injury more than six
months before the charge was filed. Bowen Prods. Corp.,
113 N.L.R.B. 731, 732 (1955); see, e. g., Local Lodge No. 1424,
Int’l Ass’n of Machinists v. NLRB (Bryan Mfg.), 362 U.S.
411, 422-423 (1960); NLRB v. Pennwoven, Inc., 194 F.2d 521,
525 (3d Cir. 1952).
Although termed the “continuing violation” doctrine, the
doctrine applied under the NLRA did not mean that vio-
lations that occurred outside the limitations period were
revived and became actionable because a course of violations
continued into the limitations period. Rather, relief was
awarded only for violations within the six-month period.
See, e. g., Melville Confections, Inc., 327 F.2d at 692. Reme-
dies such as back pay “would only start from the day six
months before the filing of the charge[],” and were not
available to remedy related violations outside the six-month
period. Pennwoven, Inc., 194 F.2d at 525; see id. at 524 (dis-
cussing National Labor Relations Board’s position); see also
Pennwoven, Inc., 94 N.L.R.B. 175, 192 (1951) (trial exam-
iner’s decision).
2. In 1972, eight years after it drew on the NLRA pre-
cedent in drafting Section 706 of the Civil Rights Act, Con-
gress amended Title VII by, among other things, expanding
the limitations period to 180 or 300 days, rather than the 90
or 210 days it had specified in 1964. See generally Mohasco
Corp. v. Silver, 447 U.S. 807, 818-824 (1980). That amend-
& n.1, 1337-1339 (1963) (finding that a profit-sharing plan adopted in 1957
“and made known to [the company’s) employees at all times thereafter”
warranted relief when charge was filed in September 1962), enforced, 327
F. 2d 689, 692 (7th Cir.), cert. denied, 377 U.S. 983 (1964).
5 Without rejecting the Board’s legal approach to continuing violation
cases, the Third Circuit held in Pennwoven that the facts presented did
not establish a new violation within the charge-filing period. 194 F. 2d at
524-526.
16
ment did not, however, signal a departure from the NLRA
model. To the contrary, the House and Senate committee
reports on the 1972 amendments referred to the new 180-day
limitations period as being “similar to” or “identical to” the
six-month limitations period that applied under Section 10(b)
of the NLRA. S. Rep. No. 415, 92d Cong., Ist Sess. 37
(1971); H.R. Rep. No. 238, 92d Cong., Ist Sess. 65 (1971)
(Minority Views).
The drafters of the 1972 amendments were aware that
courts had applied the continuing violation doctrine under
Title VII since 1964, and they approved of those decisions.
See 118 Cong. Rec. 7166, 7167 (1972) (section-by-section
analysis of final bill, submitted on Senate floor, stating that
“({e)xisting case law which has determined that certain types
of violations are continuing in nature, thereby measuring the
running of the required time period from the last occurrence
of the discrimination and not from the first occurrence is
continued”); id. at 4940, 4941 (summary of Senate bill, stating
same). The history of Section 706(e) therefore can be read as
ratifying the fundamental principle, already recognized by
the courts, that when unlawful employment practices under
Title VII “involve a pattern of conduct extending over a
period of time, a ‘continuing’ violation rather than a single
incident, * * * the [limitations] requirement is satisfied if
the charge is filed with the EEOC while such conduct or
pattern of conduct continues or within 90 [now 180 or 300]
days after it ceases.” Jamison v. Olga Coal Co., 335 F.
Supp. 454, 458 (S.D. W. Va. 1971); see, eg., Watson v.
Limbach Co., 333 F. Supp. 754, 765-766 (S.D. Ohio 1971)
(citing cases); Sciaraffa v. Oxford Paper Co., 310 F. Supp.
891, 896 (D. Me. 1970) (same). Furthermore, the existing
case law” referenced by legislators, 118 Cong. Rec. at 7167,
commonly allowed suits to proceed when it was apparent
that the plaintiff had notice of the unlawful practice more
than 90 days before the plaintiff filed with the EEOC. See,
17
e. g., Mixson v. Southern Bell Tel. & Tel. Co., 334 F. Supp.
525 (N. D. Ga. 1971); Watson, 333 F. Supp. at 765; Tippet v.
Liggett & Myers Tobacco Co., 316 F. Supp. 292, 294-296
(M. D. N. C. 1970); Sciaraffa, 310 F. Supp. at 894, 896-897;
Culpepper v. Reynolds Metals Co., 296 F. Supp. 1232, 1234-
1236 (N. D. Ga. 1968), rev’d in part on other grounds, 421
F. 2d 888 (5th Cir. 1970).
3. This Court’s decisions confirm that a Title VII plaintiff
may recover for discrimination that occurs within the
charge-filing period despite having notice of a violation out-
side the period, but may not recover for violations that
occurred outside the period. In Bazemore v. Friday, 478
U.S. 385 (1986), the Court ruled that a continuing practice of
salary discrimination that began before Title VII’s effective
date was actionable, but only “to the extent [the] employer
continued to engage in that act or practice.” Jd. at 395
(Brennan, J., joined by all other Members of the Court,
concurring in part). The Court explained that acts that are
the subject of time-barred claims “ha[ve] ‘no present legal
consequences, and that It Ihe ‘critical question’ * * * ‘is
whether any present violation exists.“ Id. at 396 n.6
(quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558
(1977)). In Bazemore there was a present violation, because
“{eJach week’s paycheck that delivers less to a black than to
a similarly situated white is a wrong actionable under Title
VII, regardless of the fact that this pattern was begun prior
to the effective date of Title VII.” Id. at 395-396.
In Lorance v. AT&T Technologies, Inc., supra, the Court
again suggested that notice of a continuing violation does not
preclude a plaintiff from recovering for violations within the
limitations period. The Court held that an employer’s adop-
tion of a facially neutral seniority system with discrimina-
tory intent does not constitute an ongoing violation that can
be challenged after the limitations period runs. 490 U.S. at
905-911. The Court noted, however, that a facially discri-
18
minatory seniority system “discriminates each time it is
applied,” and therefore “can be challenged at any time,” even
though discrimination may have been obvious at its adoption.
Id. at 912 & n.5. See also Delaware State College v. Ricks,
449 U.S. 250, 257, 259-260 (1980) (finding action time-barred
where plaintiif failed to identify discriminatory acts that
continued into the limitations period); Evans, 431 U.S. at 558
(same).
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), is
consistent with those decisions. In Havens Realty, the
Court permitted plaintiffs to seek relief under the Fair
Housing Act, 42 U.S.C. 3604, for racial “steering,” some of
which occurred within the limitations period, but some of
which was outside the limitations period. The Court re-
jected the landlord’s argument that the suit could not go for-
ward because the plaintiffs “were fully apprised of the facts
and of their rights” before the six-month limitations period.
Pet. Br. at 33, Havens Realty Corp., supra (No. 80-988). The
Court held, instead, that the plaintiffs could sue because they
had alleged “an unlawful practice that continue[d] into the
limitations period,” 455 U.S. at 381 (footnote omitted), and
that caused current injury, see id. at 379, 381, 382. At the
same time, the plaintiffs could not maintain claims that
related solely to incidents outside the limitations period. Id.
at 381. The Court did not address the appropriate measure
of relief. Rather, it noted that the parties had entered into
an agreement that, if approved by the district court, would
6 In 1991, Congress legislatively overruled the narrow holding of
Lorance and allowed challenges to the application of facially neutral but
intentionally discriminatory seniority systems after their adoption. Civil
Rights Act of 1991, Pub. L. No. 102-166, § 112, 105 Stat. 1078-1079 (42
U.S.C. 2000e-5(e)(2)). Congress, however, did not alter the general rule
that one-time acts of discrimination are not actionable outside the limita-
tions period, even if their effects are still being felt.
19
have liquidated the plaintiffs’ monetary damages and made
quantification unnecessary. See id. at 371.
4. Allowing recovery for discrimination within the
charge-filing period without regard to whether the plaintiff
had prior notice of the unlawful practice—but not for viola-
tions that occurred before the charge-filing period—furthers
the remedial purposes of Title VII. “(T]he primary ob-
jective” of Title VII “was a prophylactic one.” Albemarle
Paper Co. v. Moody, 422 U.S. 405, 417 (1975). Although Con-
gress wanted individuals who are targets of discrimination
to be made whole for those violations that are actionable, see
id. at 418, Congress above all wanted “to achieve equality of
employment opportunities and remove barriers that hald]
operated in the past to favor an identifiable group of white
employees over other employees,” id. at 417 (quoting Griggs
v. Duke Power Co., 401 U.S. 424, 429-430 (1971)). It would
undermine that “dominant purpose * * * to root out
discrimination in employment,” EEOC v. Shell Oil Co., 466
U.S. 54, 77 (1984), if persons who are subjected to ongoing
employment discrimination could not sue within the charge-
filing period because they were or should have been on prior
notice of the violation.
Allowing private plaintiffs to sue on all violations that
occur within the charge-filing period, without regard to
notice, also serves Congress’s objective of encouraging con-
ciliation and informal resolution of disputes. Congress
wanted “to promote conciliation rather than litigation in the
Title VII context,” Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 764 (1998), and accomplishment of that objective
requires employees promptly to report possible discrimina-
tion to their employer. The Court has recognized, for
example, that Title VII’s objectives are served when em-
ployees are encouraged to report sexual harassment to their
employer before it becomes severe or pervasive. Ibid. If an
employee who reported harassment in its early stages (1)
20
were deemed to have demonstrated knowledge of her claim
and (2) consequently became disabled from suing if the
harassment continued, Title VII’s limitations rules could
become an obstacle to informal and early termination of
discriminatory conduct. Employees would be discouraged
from giving their employer prompt notice of harassment and
from attempting to resolve disputes informally. And, to the
extent that employees attempted to protect their Title VII
claims by filing a charge with the EEOC after each indi-
cation of conceivably actionable harassment, the EEOC and
the courts would be burdened by a flood of incident-specific
suits. Cf. Heard v. Sheahan, 253 F.3d 316, 320 (7th Cir. 2001)
(Section 1983 claim).’
Finally, allowing suits for unlawful practices that occur
within the limitations period effectuates Congress’s policy
of “protect[ing] employers from the burden of defending
claims arising from employment decisions that are long
past.” Ricks, 449 U.S. at 256-257. Although staleness con-
cerns generally disappearſ] when suit is brought on a vio-
lation within the limitations period, Havens Realty, 455 U.S.
at 380, permitting a plaintiff to challenge related violations
that occurred outside the limitations period would threaten
injustice by reviving “claims that have been allowed to
7 In harassment cases, “duration is often necessary to convert what is
merely offensive behavior * * * into an actionable alteration in the
plaintiffs working conditions.” Dasgupta v. University of Wis. Bd. of
Regents, 121 F.3d 1138, 1139 (7th Cir. 1997) (citations omitted). Con-
fusingly, courts sometimes refer to claims that take a long time to accrue
as continuing violations. See, ¢.g., Frazier v. Delco Elecs. Corp., No. 99-
2710, 2001 WL 964933, at *2 (7th Cir. Aug. 24, 2001); Freeman v. Madison
Metro. Sch. Dist., 231 F.3d 374, 381 (7th Cir. 2000). When it remanded
respondent’s pre-limitations hostile environment claims for trial, however,
the court of appeals in this case did not rely on a theory that respondent’s
cause of action had not yet accrued as of May 3, 1994. See Pet. App. 19a-
20a.
21
slumber until evidence has been lost, memories have faded,
and witnesses have disappeared.” Order of R.R. Tele-
N v. Railway Express Agency, Inc., 321 U.S. 342, 349
By permitting suits for violations within the limitations
period, and foreclosing suits for violations outside the limita-
tions period, Congress has balanced the competing interests
of employees, employers, and the public. Allowing Title VII
claimants to sue within the limitations period even if they
had earlier notice of the unlawful employment practice
safeguards the important role of private suits in promoting
compliance and in obtaining compensation for the victims of
discrimination, and ensures that employers have an ongoing
incentive to comply with Title VII. Prohibiting suit on pre-
limitations claims encourages potential plaintiffs to bring
their claims promptly and protects employers against the
unfairness of defending against stale claims. Neither the
open-ended liability allowed by the court of appeals in this
case, nor strict enforcement of a notice rule to bar suits that
challenge ongoing violations, would be consistent with Con-
gress’s balance or with the analogous rules developed in
other areas of law.
5. Although notice outside the limitations period should
not be a complete bar to recovery, notice is relevant in con-
tinuing violation cases, as in other contexts. This Court held
in Zipes that the filing deadlines of Section 706(e) are “sub-
ject to waiver, estoppel, and equitable tolling.” 455 U.S. at
393. A Title VII plaintiff therefore could recover for conduct
that occurred outside the limitations period when, for
example, the employer’s misconduct prevented the plaintiff
from receiving notice of the violation. See generally
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151
(1984) (per curiam) (discussing equitable doctrines); Cada v.
Baxter Healthcare Corp., 920 F.2d 446, 450-453 (7th Cir.
1990), cert. denied, 501 U.S. 1261 (1991) (same); Wolin v.
22
Smith Barney Inc., 83 F.3d 847, 851-853 (7th Cir. 1996)
(same).
Moreover, some courts have applied the discovery rule to
determine when a claim accrues in Title VII cases. Under
such a rule, the charge-filing period begins to run with re-
spect to a particular incident when the potential plaintiff
learns (or with diligence should have learned) of his injury.
See, e.g., Oshiver v. Levin, Fishbein, Sedrun & Berman, 38
F.3d 1380, 1385-1387 (3d Cir. 1994); Cada, supra; see
generally 2 P. Cox, Employment Discrimination 1 22.02, at
22-14 to 22-15.0 (3d ed. 2000) (discussing cases); 2 B. Linde-
mann et. al., Employment Discrimination Law 1347-1350
(3d ed. 1996) (same). That approach makes notice an aspect
of claim-accrual.
B. Neither Caps On Back Pay Nor Damages Provisions
Demonstrate That Congress Intended To Allow Re-
covery For Unlawful Practices That Occurred Outside
The Charge-Filing Period
The language and history of Section 706(e), and the
policies underlying Title VII, thus support application of
the traditional rule that each act in furtherance of a wrongful
scheme begins a new limitations period, but does not revive
claims based on violations outside the limitations period.
Nonetheless, the court of appeals in this case applied a rule
that “contrasts sharply with the principle applied to con-
tinuous courses of wrongful conduct in other areas of the
law,” Johnson v. Nyack Hosp., 891 F. Supp. 155, 162 n.5
(S.D.N.Y. 1995), aff’d, 86 F.3d 8 (2d Cir. 1996), and allows the
plaintiff to recover for conduct outside the limitations period
as long as it is closely related to conduct within the period.
Pet. App. 14a-20a. Other lower courts also allow challenges
to pre-limitations conduct under certain circumstances. E. g.,
Sabree v. United Bhd. of Carpenters Local No. 33, 921 F. 2d
396, 399-402 (1st Cir. 1990); Berry v. Board of Supervisors of
23
L.S.U., 715 F.2d 971, 979-981 (5th Cir. 1983). The EEOC
adheres to that approach as well. See, e. g., Anisman v.
ONeill, Appeal. No. 01994634, 2001 WL 402493, at *5
(EEOC Apr. 12, 2001). Nothing in Title VII supports such
disregard for Section 706(e)’s incorporation of the traditional
continuing violation doctrine.
1. One argument for deviating from the traditional rule
focuses on Section 706(g), which has provided since 1972 that
black pay liability shall not accrue from a date more than
two years prior to the filing of a charge with the Com-
mission.” 42 U.S.C. 2000e-5(g)(1). A two-year limitation on
back pay, the argument goes, would not have been needed if
the charge-filing deadlines of Section 706(e) limited recovery
(including back pay) to violations that occurred within 300
days of the filing of the charge. See, e. g., Sabree, 921 F. ad at
401.
That argument is not persuasive. Whereas the limitations
language of Section 706(e) speaks directly to when suit must
be brought, Section 706(g) merely sets an outer limit on back
pay that, on its face, does not foreclose application of a
shorter limitations period. Nor does the legislative history
of Section 706(g) suggest that Congress meant to foreclose
application of the traditional rule developed in antitrust,
tort, contract, and labor cases.
Section 706(g)’s two-year limitation arose initially out of a
concern that employers could, absent such a limitation, be
subject to large back pay awards in federal “pattern or
practice” suits brought under Section 707, 42 U.S.C. 2000e-6,
which did not have any time limitation (other than that an
action could not reach conduct before the effective date of
the 1964 Act). See H.R. Rep. No. 238, supra, at 65-66
(Minority Views). The inclusion of current Section 707(e),
42 U.S.C. 2000e-6(e), in the 1972 legislation lessened (but did
not completely eliminate, see p. 25, infra) that concern
because it applied the procedures of Section 706 to EEOC
24
actions under Section 707. Nevertheless, the two-year cap
on back pay was included in the final version of the 1972
amendments as well. Supporters of the two-year provision
urged that it was needed because the EEOC and some
courts were not ite: preting the 90-day charge: filing period
as a limitation on recovery under Section 706. See 117 Cong.
Rec. 31,973, 31,974, 31,981 (1971) (Rep. Erlenborn); id. at
31,979 (Rep. Dent). The supporters did not endorse those
decisions, however, and other contemporaneous court deci-
sions placed a 90-day limitation on back pay in light of the
charge-filing deadline. See United States v. Georgia Power
Co., Civ. No. 12355, 1971 WL 162, at *27, *28-*29 (N.D. Ga.
June 30, 1971) (Sections 706 and 707), rev'd in part, 474 F.2d
906 (5th Cir. 1973); Johnson v. Goodyear Tire & Rubber Co.,
349 F. Supp. 3, 18 n.8 (S.D. Tex. 1972), rev'd in part, 491 F. 2d
1364 (5th Cir. 1974). In the end, the 1972 amendments did
not include any language stating whether recovery was or
was not available beyond the limitations period, but simply
ensured that, however the courts answered that question,
back pay would not be available for more than two years
beyond the filing of the charge. 42 U.S.C. 2000e-5(g)(1).
This Court’s decision in Evans further undercuts any
argument that the 1972 amendments ratified awards of back
pay beyond the limitations period. To the extent that courts
made such awards before the 1972 amendments, they gen-
erally did so under the so-called “effects theory,” which held
that “if an act originating in the past operates to discrimi-
nate against the complainant at the present time, there is a
continuous violation.” Note, Employment Discrimination
and Title VII of the Civil Rights Act of 1964, 84 Harv. L.
Rev. 1109, 1210 (1971). The Evans Court rejected the effects
theory in 1977. 431 U.S. at 557-558; see J. Carty, The
Continuing Violation Theory of Title VII After United Air
Lines, Inc. v. Evans, 31 Hastings L.J. 929, 936-949 (1980).
Congress has not overruled the holding of Evans through
legislation. Accordingly, it cannot persuasively be argued
that Congress has validated back pay awards that were
made under a theory of liability that Evans rejected. See D.
Laycock, Continuing Violations, Disparate Impact in Com-
pensation, and Other Title VII Issues, 49 Law & Contemp.
Probs. 53, 58 (1986).
Finally, a general rule limiting recovery to violations with-
in the limitations period does not render the two-year
limitation on back pay superfluous. Equitable doctrines may
extend the charge-filing period (and thus the recovery
period) beyond 300 days, so that the two-year limitation
might apply. See D. Laycock, supra, at 58. Moreover, the
United States has long taken the position that the charge-
filing periods of Section 706(e) are not relevant to investi-
gations and suits by the Attorney General (rather than the
EEOC) under Section 707. The concern about federal pat-
tern or practice suits that initially motivated legislators to
propose a two-year restriction on back pay thus remains
relevant, and Section 706(g) serves as a restriction on relief
in some Section 707 actions. See United States v. Fresno
Unified Sch. Dist., 592 F.2d 1088, 1096 & n.5 (9th Cir.), cert.
denied, 444 U.S. 832 (1979).
2. Congress’s authorization of capped awards of compen-
satory damages (relating to non-pecuniary losses) and puni-
tive damages under the Civil Rights Act of 1991, Pub. L. No.
102-166, § 102, 105 Stat. 1072-1074 (42 U.S.C. 1981a), likewise
is consistent with the traditional rule that limits recovery to
violations occurring within the limitations period. Dollar
limits on damages are compatible with temporal limits on
recovery, and the two restrictions implicate different con-
siderations. The dollar caps were part of a legislative com-
promise in 1991 that made compensatory and punitive
damages available for the first time, but subjected them to
statutory caps. The 1991 Act, however, did not modify Sec-
tion 706(e)’s limitations period, nor did it otherwise change
the recovery previously available under the Civil Rights Act
of 1964 and the 1972 amendments. See Pollard, 121 S. Ct. at
1951-1952.
3. Finally, there is no practical obstacle to applying the
traditional continuing violation doctrine to Title VII cases.
Awarding relief for only the later violations in a series of
related violations is not unworkable. To be sure, fixing the
precise amount of damages due for those violations that are
within the limitations period may sometimes prove difficult.
For example, although it may be straightforward for a jury
to determine whether particular out-of-pocket costs such as
moving and job-search expenses flow from a violation within
the limitations period, it may be more difficult to decide
whether medical or psychiatric treatments, or pain and suf-
fering, are attributable to violations after the limitations
period began to run, rather than before. But such problems
of proof are not unique to Title VII, and they can be
addressed through the “(cJonventional rules of civil litiga-
tion” that apply to Title VII claims. Price Waterhouse v.
Hopkins, 490 U.S. 228, 253 (1989) (opinion of Brennan, J.).
Those “conventional rules” draw a “clear distinction between
the measure of proof necessary to establish the fact that [a
plaintiff} had sustained some damage, and the measure of
proof necessary to enable the jury to fix the amount.” Ibid.
(quoting Story Parchment Co. v. Paterson Parchment Paper
Co., 282 U.S. 555, 562 (1931)). The plaintiff need not estab-
lish the amount of damages with exactitude, but is required
only to establish “a basis for a reasonable inference as to the
extent of the damages.” Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 688 (1946).
C. Respondent May Not Recover For Discrimination That
Occurred Outside the 300-Day Charge-Filing Period
It follows from the principles set forth above that the
court of appeals in this case erred when it held that
27
petitioner’s “pre-limitations period conduct should have been
presented to the jury * * * for purposes [of] liability.” Pet.
App. 2la. Evidence about respondent’s conduct was, rather,
“relevant background evidence,” Evans, 431 U.S. at 558,
particularly insofar as it tendled] reasonably to show the
purpose and character of” allegedly discriminatory acts that
occurred within the limitations period, FTC v. Cement Inst.,
333 U.S. 683, 705 (1948). This rule of evidence is particularly
significant as applied to respondent’s post-limitations hostile
work environment claim, which must be evaluated based on
the totality of the circumstances. See Harris v. Forklift
Sys., Inc., 510 U.S. 17, 23 (1993); ef. Van Steenburgh v. Rival
Co., 171 F.3d 1155, 1159 (8th Cir. 1999) (“An incident within
the limitations period need not satisfy the definition of
sexual harassment under Title VII when viewed in isolation.
Rather, the jury must be capable of perceiving the incident
as ‘discriminatory’ in light of all the prior incidents of sexual
harassment.”) (citations omitted). But see, e. g., Sowell v.
Alumina Ceramics, Inc., 251 F.3d 678, 682-683 (8th Cir.
2001); Minor v. Ivy Tech State College, 174 F.3d 855, 857 (7th
Cir. 1999).
The district court acknowledged the relevance of pre-
limitations conduct in its decision granting partial summary
judgment for petitioner. Pet. App. 40a-4la n.9. Respondent
has suggested, however, that the district court’s instructions
to the jury took too narrow a view of the use that could be
made of the evidence. Id. at 6a; see C.A. E.R. 464 (“You will
not consider this evidence for any purpose other than
providing context.”); id. at 878 (pre-limitations evidence “will
help you understand the context in which [the post-limita-
tions occurrences] happened, who the players were and all of
that.”). That issue is not implicated by the question pre-
sented, but it could be considered by the court of appeals on
remand. See Pet. App. 21a (“In light of our ruling, we need
not specifically rule on the evidentiary issues raised by
Morgan.”).
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
THEODORE B. OLSON
Solicitor General
STUART E. SCHIFFER
General
PAUL D. CLEMENT
Deputy Solicitor General
- AUSTIN C. SCHLICK
Assistant to the Solicitor
General
MARLEIGH D. DOVER
JOHN C. HOYLE
Attorneys
AUGUST 2001
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