Amicus Curiae Brief — National Railroad Passenger Corporation v. Morgan

|

Run, a Qo

No. 00-1614

IN THE

Supreme Gourt, U.S.

FILED

AUG 29 2001 |

Supreme Court of the Anited States

NATIONAL RAILROAD PASSENGER CORPORATION,

Petitioner,

ABNER MORGAN, JR.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

AND THE CHAMBER OF COMMERCE OF

THE UNITED STATES

IN SUPPORT OF PETITIONER

STEPHEN A. BOKAT

ROBIN S. CONRAD

JOSHUA A. ULMAN

NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Attorneys for Amicus Curiae

The Chamber of Commerce of

_ the United States

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

ANN ELIZABETH REESMAN

KATHERINE Y. K. CHEUNG

Counsel of Record

McCGUINESS, NORRIS &

WILLIAMS, LLP

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

TABLE OF CONTENTS

ALLEGEDLY DISCRIMINATORY CONDUCT

OCCURRING OUTSIDE OF TITLE VII’S

LIMITATIONS PERIOD MAY BE ACTIONABLE

AS PART OF A “CONTINUING VIOLATION”

ONLY IF EXPECTING AN INDIVIDUAL TO

SUE ON IT BEFORE THE LIMITATIONS

PERIOD EXPIRED WOULD HAVE BEEN

UNREASONABLE

I. THE LANGUAGE OF TITLE Vii,

TOGETHER WITH THIS COURT’S

CONSISTENT REFUSAL TO REVIVE

STALE CLAIMS, SUPPORTS A NARROW

APPLICATION OF THE CONTINUING

VIOLATION THEORY LIMITED TO

SITUATIONS IN WHICH AN INDIVIDUAL

REASONABLY COULD NOT HAVE

KNOWN WITHIN THE STATUTORILY

ALLOTTED TIME-PERIOD THAT HE HAD

ACTIONABLE CLAIM UNDER

A. Title VII Requires an Aggrieved Individual

To File an Administrative Charge Within

180 or 300 Days of the Allegedly

Discriminatory Event

(i)

ii

TABLE OF CONTENTS—Continued

B. This Court Consistently Has Applied the

Continuing Violation Theory Narrowlly.......

1. A Continuing Violation Requires a

Present Violation. ..........sscccsseressereseeeeees

2. The Balance This Court’s Decisions

Strike Between Providing Remedies

for Employment Discrimination and

Avoiding Stale Claims Effectively

Precludes Allowing the Mere Existence

of a Present Violation To Be Part of a

Continuing Violation ...........ccseeeseeeees

. This Court Should Limit Actionable

Conduct Under a Continuing Violation

Theory to Claims on Which an Individual

Reasonably Could Not Be Expected To

Sue Before the Limitations Period

1. The Continuing Violation Theory

Should Apply Only To Conduct That

Must Be Assessed in Light of Later

Conduct Before an __ Individual

Reasonably Could Have Known

Whether -To Assert Rights Under

REED VU civssesscscsecssssvcnnsesscvesoveesensssssssseese

2. In Contrast, Discrete Employment

Actions Are Actionable Individually

and Thus Not Part of a Continuing

WEIN cornnsecsecesvecsevesnssssnesecssssssnsseseorss

10

12

12

14

iil

TABLE OF CONTENTS—Continued

Il. ALLOWING THE NINTH CIRCUIT’S

DECISION TO STAND WOULD SEV-

ERELY PREJUDICE EMPLOYERS BY

LIMITING THEIR ABILITY TO DEFEND

STALE EMPLOYMENT ACTIONS AND

WOULD THWART TITLE VII’S GOAL OF

AVOIDING DISCRIMINATION ...........00000000

A. Allowing Aggrieved Individuals To File

EEOC Charges Outside the Limitations

Period on Discrete Employment Actions

Would Conflict With the EEOC’s

Recordkeeping Requirements Under Title

VII and Would Impose an Undue Burden

on Employers To Defend Against Stale

SD ccsnecscssnscsscsnsssecsscenmsecsneunsvessnesmmassnansees

B. Title VII's Goal of Avoiding

Discrimination, Which Led This Court To

Recognize an Affirmative Defense to

Sexual Harassment Claims Under Certain

Circumstances, Supports Setting a Reason-

able Person Standard To Establish When

Conduct Is Part of a Continuing Violation ..

SNe ese censrscsscscecssscsecsscescenscsscssssessessosssecssssessesses

Page

17

17

19

22

iV

TABLE OF AUTHORITIES

CASES Page

Alexander v. Gardner-Denver Co., 415 U.S. 36

COPD cccssnemnnssnssnnstneimenmenneeinninnn 6

Barrett v. Applied Radiant Energy Corp., 240

ey 20, 21, 22

Bazemore v. Friday, 478 U.S. 385 (1986)............. 9, 10

Berry v. Board of Supervisors, 715 F.2d 971 (Sth

CR, GD ccnnssnsnsnenesnnnaseseenmsveasssenstateresameneemenees 14

Bullington v. United Air Lines, Inc., 186 F.3d

2 be ee 14, 15, 16

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742

(BI cccssssensnnansescesssastennsesmsennssenetmanandncssmesnsenenss 19, 20

Burnett v. New York Cent. R.R., 380 U.S. 424

Ce ccscsscecsssecmmnsssennsssstmmnnmnmesnennassemenemmnase 1]

Chardon v. Fernandez, 454 U.S. 6 (1981)........000+. 10

Delaware State Coll. v. Ricks, 449 U.S. 250

CI ccscemnsnnssnecsmmesseermmmenensessceremntenasianmapemessans 7, 10, 11

Faragher v. City of Boca Raton, 524 U.S. 775

ee 19, 20

Galloway v. General Motors Serv. Parts

Operations, 78 F.3d 1164 (7th Cir.

SED cnesssnsssenmsssnssnssrenmesemmmnsnnnennamnesnees 12, 13, 14, 21

Gipson v. KAS Snacktime Co., 83 F.3d 225 (8th

CER, BMD cocnsnsnssansesscasssssssssussssnessagensnsenesesasenssense 15

Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554

een 14

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).... 16

High v. University of Minnesota, 236 F.3d 909

GB Cie, Fi nccnsersnssensessnncssnsnsccsstusepmmeenssain 15

International Union of Electrical, Radio and

Machine Workers v. Robbins & Myers, Inc.,

GID UB. Fa (i Pep cccsssscssssssssrssssnenssssnsn 7,8

Johnson v. Railway Express Agency, Inc., 421

a 11

TABLE OF AUTHORITIES—Continued

Page

Lightfoot v. Union Carbide Corp., 110 F.3d 898

GEE GO Rrretrpnsnatenesnimainnemenessmmetemeene 16

Mohasco Corp. v. Silver, 447 U.S. 807 (1980)...... 7,8

Parkins v. Civil Constructors, Inc., 163 F.3d

Bee Ge Ge ee antemncnnmenemenenaenen 20

Stolzenburg v. Ford Motor Co., 143 F.3d 402

CRS Cie cncccnnnsersseepaicsnseenenpneteenmnmnmn 15, 16

United Air Lines, Inc. v. Evans, 431 U.S. 553

SFI OP ncneraesunmnnsntanneannttenntennensenennneel 8,9, 11,12

Webb v. Cardiothoracic Surgery Assocs., 139

Pe EA COED crntesccnssensetensenemmemenes 13,14

STATUTES

Title VII of the Civil Rights Act of 1964,

ee Be OF GD ccccatnssnszncssrnssnesesseseneees passim

Fe ass © ee ND cccsncncesemssssnsenenesnes 5, 7, 8, 16

FD ise OF ee Se crsrnecsesnscsssnsensecmsenesessenes 7

REGULATIONS

et DF een 17

IN THE |

Supreme Court of the Anited States

No. 00-1614

NATIONAL RAILROAD PASSENGER CORPORATION,

Petitioner,

Vv.

ABNER MORGAN, JR.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

AND THE CHAMBER OF COMMERCE OF

THE UNITED STATES

IN SUPPORT OF PETITIONER

The Equal Employment Advisory Council and The

Chamber of Commerce of the United States respectfully

submit this brief as amici curiae.’ A letter of consent from all

parties has been filed with the Court. The brief urges this

Court to reverse the decision below, and thus supports the

position of the petitioner, National Railroad Passenger

Corporation. 7

' Counsel for amici curiae authored the brief in its entirety. No person

or entity, other than the amici, their members, or their counsel, made a

monetary contribution to the preparation or submission of the brief.

2

INTEREST OF THE AMICI CURIAE

The Equal Employment Advisory Council (“EEAC” or the

“Council”) is a nationwide association of employers

organized in 1976 to promote sound approaches to the

eliminayion of employment discrimination. Its membership

includes over 360 of the nation’s largest private sector

corparations, collectively employing over 17 million people

throughout the United States. EEAC’s directors and officers

include many of industry’s leading experts in the field of

equal employment opportunity. Their combined experience

gives the Council a unique depth of understanding of the

practical, as well as legal, considerations relevant to the

proper interpretation and application of equal employment

policies and requirements. EEAC’s members are firmly

committed to the principles of nondiscrimination and equal

employment opportunity.

The Chamber of Commerce of the United States (“the

Chamber”) is the world's largest business federation,

representing an underlying membership of nearly three

million businesses and organizations of every size and in

every industry sector and geographical region of the country.

A principal function of the Chamber is to represent the

interests of its members by filing amicus briefs in cases

involving issues of vital concern to the nation’s business

community.

All of EEAC’s and many of the Chamber’s members are

employers subject to Title VII of the Civil Rights Act of 1964

(Title VII), 42 U.S.C. § 2000e et seq., and other equal

employment statutes and regulations. As employers, and as

potential defendants to claims asserted under these laws,

members of EEAC and the Chamber have a substantial

interest in the issue presented in this case, i.e., whether an

individual who declined to file a charge within Title VII's

limitations period on discrete allegedly discriminatory

3

employment actions subsequently may revive them simply by

arguing that they are “sufficiently related” to allegedly

discriminatory acts that fall within the applicable limitations

period.

EEAC and the Chamber seek to assist this Court by

highlighting the impact its decision may have beyond the

immediate concerns of the parties to the case. Accordingly,

this brief brings to the attention of this Court relevant matters

that the parties have not raised. Because of their experience

in these matters, EEAC and the Chamber are well situated to

brief this Court on the concerns of the business community

and the significance of this case to employers.

STATEMENT OF THE CASE

Abner Morgan, Jr., an African-American male, worked for

the National Railroad Passenger Corporation, dba Amtrak

(“Amtrak”), from August 1990 until his termination in March

1995. Pet. App. 7a-12a. During his employment, Morgan

received several disciplinary actions, including written and

verbal counselings and suspensions from work without pay,

' for violating work rules and absenteeism. /d. at 6a-12a.

Morgan claims that he requested and was denied career

opportunities at various times while working for Amtrak. /d.

He was terminated by Amtrak in 1995 for violating a work

rule, /d. at 1 la-12a.

Although Morgan filed a number of internal equal

employment opportunity (EEO) complaints during the five

years he worked at Amtrak, he did not file a charge with the

Equal Employment Opportunity Commission (EEOC) until

February 27, 1995, shortly prior to his termination. /d. at 13a.

In his EEOC charge, Morgan alleged that he was subjected to

race discrimination and retaliation, and endured a racially

hostile working environment, in violation of Title VII during

the entire five years he worked at Amtrak. /d. at 6a. Morgan

4

thus attempted to combine events that occurred outside Title

VII's limitations period, in this case 300 days prior to the

filing of his EEOC charge, with more recent events as a

continuing violation in order to avoid dismissal of his older

claims as time-barred. /d.

The U.S. District Court for the Northern District of

California granted partial summary judgment in favor of

Amtrak on the older claims. The district court ruled that

conduct that had occurred more than 300 days from the date

of the charge was time-barred. /d. at 13a. The district court

allowed Morgan’s timely claims to proceed to trial and a jury

returned a verdict in favor of Amtrak. /d.

On appeal, the U.S. Court of Appeals for the Ninth Circuit

reversed the partial summary judgment decision. It

interpreted the continuing violation theory to allow untimely

claims to proceed if the “acts during the [limitations] period

_ involve the same type of discrimination as those committed

before the period.” /d. at 17a (internal quotation and citation

omitted). This standard asks only “whether there is a

common type of discrimination, such as [racial] harassment,

or if there is a common kind of employment action, such as

repeated denial of a promotion.” /d. (internal quotation and

citation omitted). Applying its version of the continuing

violation theory to Morgan’s claims, the Ninth Circuit

concluded that the pre-limitations conduct was “closely

enough related to” the events occurring within the limitations

period, and thus, properly the subject of Morgan’s suit.

Id. at 18a-20a.

Amtrak filed a petition with this Court for a writ of

certiorari on the issue of whether a plaintiff who knowingly

has allowed the statute of limitations to expire on alleged

violations of federal anti-discrimination laws nevertheless

may resurrect such claims if they are “sufficiently related” to

incidents within the limitations period. The Court granted

the petition.

'

5

SUMMARY OF ARGUMENT

Both the language of Title VII of the Civil Rights Act of

1964 (“Title VII’) and this Court’s repeated refusal to revive

stale claims support limiting the continuing violation theory

to situations in which an individual could not reasonably have

known within the statutory time-period that he should assert

his rights under Title VII. That law requires an aggrieved

individual to file an administrative charge of discrimination

with the Equal Employment Opportunity Commission

(EEOC) within 180 or 300 days of the allegedly

discriminatory event. 42 U.S.C. § 2000e-5(e). This Court

consistently has interpreted this statutory time-limit strictly to

require a present violation. The balance that this Court’s

decisions strike between remedying workplace discrimination

and avoiding stale claims effectively precludes the Ninth

Circuit’s view that the existence of a present violation alone

is enough to treat stale claims as part of a continuing violation

merely because they allege the same type of discrimination.

This Court should limit the continuing violation theory to

apply only to claims on which an individual reasonably could

not be expected to sue before the limitations period expired.

Conduct should be part of a continuing violation only if an

individual needs to assess it in light of later conduct in order

to determine whether a violation of his rights under Title VII

has occurred. In contrast, discrete employment actions are

actionable on an individual basis, and thus not part of a

continuing violation.

Allowing the Ninth Circuit’s decision to stand would

severely prejudice employers by limiting their ability to

defend stale employment actions and would thwart Title VII's

goal of avoiding discrimination. Allowing an individual to

file a discrimination charge more than 300 days after a

discrete, allegedly discriminatory, act occurred conflicts with

the EEOC’s recordkeeping requirements under Title VII and

places an undue burden on an employer to maintain the

6

records necessary to defend its past actions. Title VII’s goal

of avoiding discrimination, the same concern that led this

Court to recognize an affirmative defense to sexual

harassment claims under certain circumstances, also supports

holding a plaintiff’s actions to a “reasonable person” standard

to determine when conduct is part of a continuing violation.

ARGUMENT

ALLEGEDLY DISCRIMINATORY CONDUCT OCC-

URRING OUTSIDE OF TITLE VII’S LIMITATIONS

PERIOD MAY BE ACTIONABLE AS PART OF A

“CONTINUING VIOLATION” ONLY IF EXPECTING

AN INDIVIDUAL TO SUE ON IT BEFORE THE

LIMITATIONS PERIOD EXPIRED WOULD HAVE

BEEN UNREASONABLE

I. THE LANGUAGE OF TITLE VII, TOGETHER

WITH THIS COURT’S CONSISTENT REFUSAL

TO REVIVE STALE CLAIMS, SUPPORTS A

NARROW APPLICATION OF THE CONTIN-

UING VIOLATION THEORY LIMITED TO

SITUATIONS IN WHICH AN INDIVIDUAL

REASONABLY COULD NOT HAVE KNOWN

WITHIN THE STATUTORILY ALLOTTED

TIME-PERIOD THAT HE HAD AN ACTION-

ABLE CLAIM UNDER TITLE VII

A. Title VII Requires an Aggrieved Individual To

File an Administrative Charge Within 180 or

300 Days of the Allegedly Discriminatory Event

Title VII “specifies with precision the jurisdictional

prerequisites that an individual must satisfy before he is

entitled to institute a lawsuit.” Alexander v. Gardner-Denver

Co., 415 U.S. 36, 47 (1974). One of these prerequisites is

that aggrieved individuals must file an adminis’ \tive charge

of discrimination with the Equal Employment )pportunity

7

Commission (EEOC) within one hundred and eighty days

after the alleged discriminatory event. 42 U.S.C. § 2000e-

5(e).? Congress specifically decided that the time limitations

would start with the date of the “alleged unlawful

employment practice.” Jd.; Delaware State Coll. v. Ricks,

449 U.S. 250, 259 (1980). Title VII makes only one

exception to this requirement. Where the aggrieved

individual has filed a discrimination charge with a state or

local enforcement agency with authority to grant or seek

relief, he or she has “three hundred days after the alleged

unlawful employment practice occurred” to file an EEOC

charge. 42 U.S.C. § 2000e-5(e). No other exceptions extend

the length of Title VII's limitations period.

Congress deliberately restricted the rights of individuals to

raise Title VII claims when it set the length of the limi.ations

period. In a related context, this Court cautioned courts

against disregarding this restriction:

By choosing what are obviously quite short deadlines,

Congress clearly intended to encourage the prompt

processing of all charges of employment discrimination .

. . [Ijn a statutory scheme in which Congress carefully

prescribed a series of deadlines measured by numbers of

days—trather than months or years—we may not simply

interject an additional . . . period into the procedural

scheme. We must respect the compromise embodied in

the words chosen by Congress. It is not our place simply

to alter the balance struck by Congress in procedural

statutes by favoring one side or the other in matters of

statutory construction.

Mohasco Corp. v. Silver, 447 U.S. 807, 825-26 (1980)

(footnote omitted); see also International Union of Electrical,

2 The second prerequisite is that an individual must file suit within

ninety days of receiving a notice of the right to sue from the EEOC. 42

U.S.C. § 2000e-5(f).

8

Radio and Machine Workers v. Robbins & Myers, Inc., 429

U.S. 229, 240 (1976) (“Congress has already spoken with

respect to what it considers acceptable delay when it

established a 90-day limitations period, and gave no

indication that it considered a ‘slight’ delay followed by 90

days equally acceptable. In defining Title VII’s jurisdictional

prerequisites ‘with precision,’ Congress did not leave to

courts the decision as to which delays might or might not be

‘slight’”) (citation omitted).’

This Court concluded in Mohasco that in choosing the

length of Title VII’s_ limitations period, Congress

intentionally risked leaving some victims of discrimination

without a remedy in order to further its goal of precluding

stale claims, stating: “it seems clear that the 90-day provision

to some must have represented a judgment that most genuine

claims of discrimination would be promptly asserted and that

the costs associated with processing and defending stale or

dormant claims outweigh the federal interest in guaranteeing

a remedy to every victim of discrimination.” 447 U.S. at 820.

In light of Congress’s decision, this Court advised: “in the

long run, experience teaches that strict adherence to the

procedural requirements specified by the legislature is the

best guarantee of evenhanded administration of the law.” /d.

at 826. Those words of advice apply with equal force to this

case.

B. This Court Consistently Has Applied the

Continuing Violation Theory Narrowly

This Court has ruled before that prior conduct is not

actionable as part of a continuing violation unless a present

wrong exists within Title VII's limitations period. United Air

Lines, Inc. v. Evans, 431 U.S. 553 (1977). The converse,

> The 1972 amendments to Title VII enlarged the limitations period to

180 days. (codified as amended at 42 U.S.C. § 2000e-5(e)).

9

however, is not true. The occurrence of an allegedly

discriminatory event within Title VII's limitations period

does not revive all claims alleging the same type of

discrimination that arose before the limitations period, as the

Ninth Circuit held below.

1. A Continuing Violation Requires a Present

Violation

In keeping with the plain language of Title VII, this Court

applied the continuing violation theory narrowly in United

Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), to require a

“present violation” of Title VII within the limitations period.

Id. at 558 (emphasis added). In Evans, a flight attendant was

forced to resign for violating a policy that later was found to

be discriminatory. When she was rehired four years later, her

seniority date did not reflect her prior service with the

company. Evans did not file a timely administrative charge

over her resignation, but tried to revive this claim after her

rehire by alleging that the company’s seniority system was

part of a continuing violation that “gives present effect to the

past illegal act and therefore perpetuates the consequences of

forbidden discrimination.” /d. at 557.

This Court rejected Evans’ argument because no current

violation of Title VII existed at the time of her charge. The

seniority system by itself did not treat similarly situated males

and females differently on the basis of sex, and thus did not

carry the prior discriminatory act—her forced resignation—

forward into the present as a continuing violation. The Court

instructed: “the emphasis should not be placed on mere

continuity; the critical question is whether any present

violation exists.” Id. at 558. *

* Compare Bazemore v. Friday, 478 U.S. 385, 395 (1986) (applying

continuing violation theory where “[e]ach week’s paycheck that delivers

10

This Court again refused to allow an individual’s continued

employment to expand the limitations period to cover an

untimely discrimination claim in Delaware State College v.

Ricks, 449 U.S. 250 (1980). In that case, the Court held the

college’s decision to deny Ricks tenure was the

discriminatory act that marked the beginning of the

limitations period, even though he did not feel one of the

effects of the decision until his termination. Again, this Court

reminded litigants that “[mJere continuity of employment,

without more, is insufficient to prolong the life of a cause of

action for employment discrimination.” Ricks, 449 U.S. at

257 (citing Evans). Likewise, this Court ruled in Chardon v.

Fernandez, 454 U.S. 6 (1981), that the limitations period on

_ plaintiff's claim began when he received notice of his

impending termination, not on the actual date of his

termination, even though he continued to work up to his last

day.

2. The Balance This Court’s Decisions Strike

Between Providing Remedies for Employ-

ment Discrimination and Avoiding Stale

Claims Effectively Precludes Allowing the

Mere Existence of a Present Violation To Be

Part of a Continuing Violation

The Court’s prior decisions effectively preclude expanding

Title VII's limitations period by allowing a present violation

to revive stale claims as part of a continuing violation simply

because they allege the same type of discrimination. In fact,

this Court has said that the purpose of statutes of limitations

is to avoid precisely the prejudice to employers that results

from defending stale claims.

less to a black than to a similarly situated white is a wrong actionable

under Title VII ... ”).

Statutes of limitations are primarily designed to assure

fairness to defendants. Such statutes “promote justice by

preventing surprises through the revival of claims that

have been allowed to slumber until evidence has been

lost, memories faded, and witnesses have disappeared.

The theory is that even if one has a just claim it is unjust

not to put the adversary on notice to defend within the

period of limitation and that the right to be free of stale

claims in time comes to prevail over the right to

prosecute them.”

Burnett v. New York Cent. R.R., 380 U.S. 424, 428 (1965). A

narrow application of the continuing violation theory

encourages the prompt filing of claims, which in turn is likely

to increase the accuracy of the determination as to whether

unlawful discrimination occurred.

The decisions limiting the application of the continuing

violation theory thus reflect this Court’s view that the interest

of an individual who fails to undertake the “minimal” step of

filing a charge to preserve his Title VII claim must give way

to the interest of avoiding stale claims. See Ricks, 449 U.S. at

256-57 (“[t}he limitations periods, while guaranteeing the

protection of the civil rights laws to those who promptly

assert their rights, also protect employers from the burden of

defending claims arising from employment decisions that are

long past”); Johnson v. Railway Express Agency, Inc., 421

U.S. 454, 463-64 (1975) (“the length of the period allowed

for instituting suit inevitably reflects a value judgment

concerning the point at which the interests in favor of

protecting valid claims are outweighed by the interests in

prohibiting the prosecution of stale ones’’).

Barring stale claims helps effectuate the employer's civil

right to finality. The Court described the practical

consequences of an individual's failure to file a timely charge

in Evans as follows:

12

United was entitied to treat that past act as lawful after

respondent failed to file a charge of discrimination

within the 90 days then allowed by § 706(d).

A discriminatory act which is not made the basis for a

timely charge is the legal equivalent of a discriminatory

act which occurred before the statute was passed. It may

constitute relevant background evidence in a proceeding

in which the status of a current practice is at issue, but

separately considered, it is merely an unfortunate event

in history which has no present legal consequences.

431 U.S. at 558.

C. This Court Should Limit Actionable Conduct

Under a Continuing Violation Theory to

Claims on Which an Individual Reasonably

Could Not Be Expected To Sue Before the

Limitations Period Expired

1. The Continuing Violation Theory Should

Apply Only To Conduct That Must Be

Assessed in Light of Later Conduct Before

an Individual Reasonably Could Have

Known Whether To Assert Rights Under

Title VII

Under certain limited circumstances, the continuing

violation theory may allow an individual to challenge conduct

occurring outside of Title VII's limitations period as part of a

timely claim. In so doing, however, courts must still maintain

a proper balance with the interest in avoiding stale claims.

The Seventh Circuit established an appropriate test in

Galloway v. General Motors Service Parts Operations, 78

F.3d 1164 (7th Cir. 1996), limiting the use of the continuing

violation theory to situations in which the individual

reasonably could not have perceived that the conduct was

actionable within the limitations period. In Galloway, an

employee who claimed that her co-worker had made repeated

13

derogatory and offensive comments to her of a sexual nature

since 1987 did not file an administrative charge of sex

discrimination with the EEOC until 1991. In allowing

Galloway to challenge conduct that occurred more than 300

days before she filed her EEOC charge, the Seventh Circuit

recognized that the particular nature of harassment claims

makes the continuing violation theory applicable under

certain circumstances: “Sexual harassment serious enough to

constitute unlawful discrimination on grounds of sex is often

a cumulative process rather than a one-time event. In its early

stages it may not be diagnosable as sex discrimination, or

may not cross the threshold that separates the nonactionable

from the actionable.” 78 F.3d at 1166 (citation omitted). For

this reason, the court was willing to include pre-limitations

conduct into a timely Title VII charge.

Nevertheless, the court appropriately reserved continuing

violations to situations where “it would have been

unreasonable to expect the plaintiff to sue before the statute

ran on that conduct,” since a plaintiff should not benefit from

her own inaction. /d. at 1167. “[I}n such a case, while she

can still sue provided that the last act of harassment occurred

within the statute of limitations, she cannot reach back and

base her suit also on conduct that occurred outside the statute

of limitations; for she had no excuse for waiting that long.”

Id. (emphasis added) (citations omitted).

The Fifth Circuit also has used the Seventh Circuit's

standard to limit the use of the continuing violation theory in

Webb v. Cardiothoracic Surgery Associates, 139 F.3d 532

(Sth Cir. 1998). In that case, a plaintiff who knew she was

experiencing unlawful harassment, but nevertheless failed to

file a timely charge, could not include conduct that occurred

outside of Title VII's limitations period in her lawsuit. /d. at

14

537-38.° This approach thus furthers Title VII's objective to

promote the prompt filing and resolution of discrimination

charges while recognizing that some harassing conduct may

not alert an individual to the presence of a harassment claim

until after the limitations period on some of the incidents has

expired.

2. In Contrast, Discrete Employment Actions

Are Actionable Individually and Thus Not

Part of a Continuing Violation

The key question for Title VII's limitations period is “what

event, in fairness and logic, should have alerted the average

lay person to act to protect his rights.” Glass v. Petro-Tex

Chem. Corp., 757 F.2d 1554, 1560-61 (Sth Cir. 1985)

(citation omitted). The continuing violation theory maintains

this focus by asking when an individual reasonably could be

expected to know that his rights are being violated.

According to the Tenth Circuit:

The continuing violation doctrine “is premised on the

equitable notion that the statute of limitations should not

begin to run until 2 reasonable person would be aware

that his or her rights have been violated.” Thus, a

continuing violation claim will likely fail if the plaintiff

knew, or through the exercise of reasonable diligence

* The Fifth Circuit has its own test to determine when to use the

continuing violation theory to revive otherwise time-barred claims. That

test asks whether the alleged acts involve the same protected basis and

type of employment action, if they are recurring, and if they have the

degree of “permanency” to trigger an individual's awareness of and duty

to assert his rights. Berry v. Board of Supervisors, 715 F.2d 971, 981 (Sth

Cir. 1983). As the Webb decision shows, however, the case law seems to

focus on the last factor as determinative of when otherwise untimely

conduct is part of a continuing violation, essentially reducing the test to

the Seventh Circuit's Galloway standard.

15

would have known, she was being discriminated against

at the time the earlier events occurred.

Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1311

(10th Cir. 1999) (citation omitted).

The rationale for applying the continuing violation theory,

however, is absent where discrete employment actions, like

being denied a promotion or receiving a disciplinary action,

are involved. In those situations, the adverse employment

action happens at a specific time and is sufficient to alert the

aggrieved individual that his rights may have been violated.

For this reason, several circuits correctly have refused to

apply the continuing violation theory to discrete acts. In

Gipson v. KAS Snacktime Co., 83 F.3d 225 (8th Cir. 1996),

for example, the Eighth Circuit rejected plaintiff's

characterization of his denial of a pay raise and alleged

discriminatory demotion and reassignment as part of a

continuing violation. Instead, these acts were time-barred

under the state’s anti-discrimination statute. The court

explained: “a discrete, adverse employment action, such as a

discharge, layoff, or failure to promote, constitutes a

completed act at the time it occurred. The time for filing an

administrative charge or commencing a lawsuit runs from the

date of such a discriminatory act, even if its effects on the

injured employee are long-lasting.” /d. at 229 (internal

quotation and citations omitted); see also High v. University

of Minnesota, 236 F.3d 909 (8th Cir. 2000).

Likewise, the court held that repeated denials of

promotions were discrete employment actions that were not

part of a continuing violation in Stolzenburg v. Ford Motor

Co., 143 F.3d 402 (8th Cir. 1998). As a result, each non-

promotion that occurred more than 300 days before the filing

of an EEOC complaint was time-barred. “In order to

establish a continuing violation . . . , a plaintiff must show

that the acts of which he or she complains were not actionable

16

as discrete violations of the applicable law. /d. at 405 (citing

United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977)).

See also Bullington, 186 F.3d at 1311 (non-promotion two

years earlier put plaintiff on notice that unlawful conduct had

occurred, precluding use of a continuing violation theory to

save her stale claims).

The Second Circuit followed the same approach in refusing

to treat the denial of a pay raise, alleged demotion and

termination as part of a continuing violation in Lightfoot v.

Union Carbide Corp., 110 F.3d 898 (2d Cir. 1997), cert.

denied, 528 U.S. 817 (1999). The court reasoned:

“(completed acts such as a termination through discharge or

resignation, a job transfer, or discontinuance of a particular

job assignment, are not acts of a ‘continuing’ nature.” /d. at

907 (internal quotation and citation omitted).

Unlike harassment cases, where the conduct may continue

over a period of time before it becomes severe or pervasive

enough to create a hostile work environment, see Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993), a discrete

employment action is actionable on its own. It does not

require subsequent events to alert an individual that his rights

may have been violated. Thus, an individual will know at the

time the discrete employment action occurs whether he thinks

he has experienced discrimination. If he thinks he has

a claim, Title VII requires him to file a charge with the

EEOC within 180 or 300 days of the event, depending on

whether a state or local enforcement agency exists. 42 U.S.C.

§ 2000e-5(e). Otherwise, his claims are time-barred.

17

Il. ALLOWING THE NINTH’ CIRCUIT'S

DECISION TO STAND WOULD SEVERELY

PREJUDICE EMPLOYERS BY LIMITING

THEIR ABILITY TO DEFEND STALE

EMPLOYMENT ACTIONS AND WOULD

THWART TITLE VII’S GOAL OF AVOIDING

DISCRIMINATION

A. Allowing Aggrieved Individuals To File

EEOC Charges Outside the Limitations

Period on Discrete ,Employment Actions

Would Conflict With the EEOC’s Record-

keeping Requirements Under Title VII and

Would Impose an Undue Burden on

Employers To Defend Against Stale Claims

Employers need to operate without the constant pressure

that flows from the uncertainty over whether they will have to

defend past employment decisions against challenges in the

distant future. The EEOC recognized this need when it set

the retention period for employers to keep certain personnel

and employment records under Title VII at one year from the

date the record is made or the personnel action involved

occurs, whichever is later, unless a charge has been filed.

29 C.F.R. § 1602.14. These records generally relate to

discrete employment actions, like hiring, promotions and

terminations.

The one-year retention period means employers will not

destroy relevant documents as part of routine file

maintenance before an individual has had the opportunity to

file a charge of discrimination with the EEOC. Since Title

VII gives some aggrieved individuals up to 300 days from the

date of the allegedly discriminatory event to file such a

charge, an employer will know whether a_ particular

employment action is the subject of a charge before it

destroys any relevant documents.

Interpreting the continuing violation theory broadly as the

Ninth Circuit has done to expand the limitations period well

beyond 300 days severely prejudices employers who

reasonably have relied on the regulation lawfully to destroy

relevant documents. The employer will not have any

documents to support employment actions it took more than

one year ago, which will hamper drastically its ability to

defend itself against a subsequent discrimination claim.

For instance, allowing the decision below to stand would

permit an employee who has applied and been rejected for ten

promotions during the twenty years he has worked at a

company to file suit under Title VII on all of them under a

continuing violation theory, as long as the last rejection arose

within the applicable limitations period. Under the Ninth

Circuit’s decision, even if the employee believed the first nine

rejections were discriminatory when they occurred, the

employee could have remained silent without sacrificing his

claims. The employer would not have any inkling during the

employee’s career of his perception of discrimination, but it

still would have to defend itself on each employment action

many years after it occurred.

The sion below effectively would require employers to

save . , -rsonnel and employment records forever, since

they would not be able to anticipate which employment

decisions would generate discrimination charges or when.

This response, however, places an undue burden on the

empluyer and is one the EEOC expressly rejected by limiting

Title VII's recordkeeping requirements to one year, unless a

charge has been filed.

In contrast, using the continuing violation theory to cover

only a continuing course of conduct leading to an actionable

harassment claim does not pose the same recordkeeping

concerns, since harassment claims are unlikely to involve the

type of personnel or employment records that the EEOC

requires an employer to keep.

19

B. Title VII’s Goal of Avoiding Discrimination,

Which Led This Court To Recognize an

Affirmative Defense to Sexual Harassment

Claims Under Certain Circumstances, Sup-

ports Setting a Reasonable Person Standard To

Establish When Conduct Is Part of a

Continuing Violation

This Court balanced the competing interests of

complainants and employers when it developed an

affirmative defense to harassment claims under certain

circumstances in Burlington Industries, Inc. v. Ellerth, 524

U.S. 742 (1998), and Faragher v. City of Boca Raton, 524

U.S. 775 (1998). Where the employer has not taken any

tangible employment action, it may raise an affirmative

defense to liability and damages for harassment by a

supervisor by showing two things: (1) that it exercised

reasonable care to prevent and promptly correct any sexually

harassing behavior and (2) that the alleged victim

unreasonably failed to take advantage of any of the

preventive or corrective measures the employer provided or

to avoid harm otherwise. Ellerth, 524 U.S. at 765; Faragher,

524 U.S. at 807.

The Court explained in Faragher that holding an individual

to a reasonable care standard stems from the general theory of

damages, which requires a victim to use reasonable means to

avoid or minimize harm. The underlying premise of the

affirmative defense is that an employer should not be

responsible for harm the individual could have avoided. “If

the victim could have avoided harm, no liability should be

found against the employer who had taken reasonable care,

and if damages could reasonably have been mitigated no

20

award against a liable employer should reward a plaintiff for

what her own efforts could have avoided.” Jd. at 807.°

In Faragher, this Court went on to describe Title VII's

““primary objective’ . . . [as] not to provide redress but to

avoid harm.” 524 U.S. at 806. The affirmative defense

accomplishes this objective by encouraging employers to

develop, and individuals to use, effective complaint

procedures.

Title VII is designed to encourage the creation of

antiharassment policies and_ effective grievance

mechanisms. Were employer liability to depend in part

on an employer’s effort to create such procedures, it

would effect Congress’ intention to promote conciliation

rather than litigation in the Title VII context, and the

EEOC’s policy of encouraging the development of

grievance procedures. To the extent limiting employer

liability could encourage employees to report harassing

conduct before it becomes severe or pervasive, it would

also serve Title VII's deterrent purpose. As we have

observed, Title VII borrows from tort law the avoidable

consequences doctrine, and the considerations which

animate that doctrine would also support the limitation

of employer liability in certain circumstances.

Ellerth, 524 U.S. at 764 (citations omitted).

° Several courts of appeals have upheld the availability of the

affirmative defense based on the unreasonableness of the employee's

inaction in response to the alleged harassment. See, e.g., Barrett v.

Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th Cir. 2001)

(refusing to excuse a plaintiff's failure to complain about alleged

harassment based on a speculative fear of retaliation as unreasonable);

Parkins v. Civil Constructors, Inc., 163 F.3d 1027, 1038 (7th Cir. 1998)

(“‘the law against sexual harassment is not self-enforcing’ and an

employer cannot be expected to correct harassment unless the employee

makes a concerted effort to inform the employer that a problem exists”)

(citation omitted).

21

The same considerations support establishing a “reasonable

person” standard for determining when conduct is part of a

_ continuing violation. A victim of discrimination who is

aware of his rights, but fails to file a timely EEOC charge,

knowingly allows a discriminatory situation to continue,

frustrating Title VII. Requiring timely EEOC charges avoids

harm by maximizing an employer’s opportunity to learn of

the alleged discrimination and to correct it promptly. Many

instances may arise where employers, particularly large ones

such as members of EEAC and the Chamber, are unaware of

potentially discriminatory conduct occurring in_ the

workplace. In these situations, they must rely on their

employees to report any potential discrimination. Even if the

conduct does not rise to the level of actionable discrimination,

it still may disrupt the workplace and require attention. The

sooner the employer learns of the potential discrimination, the

sooner it can address it.

Prompt action clearly benefits the victim of alleged

discrimination—“bringing of the suit is almost certain to stop

the harassment, so that unlike certain cases of nuisance the

plaintiff will not be put to the expense of bringing successive

suits. What is more, she can always seek injunctive relief

against a continuation of the unlawful conduct.” Galloway,

78 F.3d at 1167 (citations omitted).

In fact, an early resolution of the situation also helps the

workforce and the employer. “Reporting the harasser

benefits the victim by allowing the company to halt future

harassment. it benefits others who might be harassed by the

same individual, and it benefits the company by alerting it to

the disruptive and unlawful misconduct of an employee.

Thus, the reporting requirement serves the primary objective

of Title VII which is not to provide redress but to avoid

harm.” Barrett v. Applied Radiant Energy Corp., 240 F.3d

262, 267 (4th Cir. 2001) (internal quotations and citation

omitted).

22

The Ninth Circuit’s decision to allow individuals who

knowingly delay reporting discrimination to revive stale

claims would subject individuals to more discrimination, not

less, undermining the primary goal of Title VII. See Barrett,

240 F.3d at 267. The Seventh Circuit’s approach, in contrast,

respects fully the delicate balance Congress struck in enacting

Title VII among an individual’s interest in asserting a civil

rights violation, an employer’s interest in not defending stale

claims, and the public’s interest in promptly ending

discriminatory practicey.

CONCLUSION

For the foregoing reasons, the decision of the court of

appeals should be reversed.

Respectfully submitted,

STEPHEN A. BOKAT ANN ELIZABETH REESMAN

ROBIN S. CONRAD KATHERINE Y. K. CHEUNG

JOSHUA A. ULMAN Counsel of Record

NATIONAL CHAMBER MCGUINESS, NORRIS &

LITIGATION CENTER, INC. WILLIAMS, LLP

1615 H Street, N.W. 1015 Fifteenth Street, N.W.

Washington, D.C. 20062 Suite 1200

(202) 463-5337 Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae Attorneys for Amicus Curiae

The Chamber of Commerce of | Equal Employment Advisory

the United States Council