Amicus Curiae Brief — National Railroad Passenger Corporation v. Morgan

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No. 00-1614 x -

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In The a

Supreme Court of the United States

+

NATIONAL RAILROAD PASSENGER CORPORATION,

Petitioner,

ABNER MORGAN, JR.,

Respondent.

2

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

+

BRIEF AMICI CURIAE OF THE IMPACT FUND,

DISABILITY RIGHTS EDUCATION AND DEFENSE

FUND, PUBLIC ADVOCATES, INC., THE WESTERN

CENTER ON DISABILITY RIGHTS, PROTECTION

AND ADVOCACY, INC., THE MEXICAN AMERICAN

LEGAL DEFENSE AND EDUCATIONAL FUND,

EQUAL RIGHTS ADVOCATES, THE ASIAN PACIFIC

AMERICAN LEGAL CENTER, THE LEGAL AID

FOUNDATION OF LOS ANGELES AND THE

MICHIGAN CIVIL RIGHTS DIVISION

IN SUPPORT OF THE RESPONDENT

+

BRAD SELIGMAN Evten Laxke*

Jocetyn D. LarKIN Law Orrices or Eten LAKE

THe Impact FuNpD 4230 Lakeshore Avenue

125 University Avenue Oakland, CA 94610-1136

Berkeley, CA 94710-1616 (510) 272-9393

(510) 845-3473

*Counsel of Record

Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY

i

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE................

SUMMARY OF ARGUMENT. ............00eeeeeees

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SS =» « i PrrrrrTTrerrr TT rTrirtTe

A.

USE OF A “KNEW OR SHOULD HAVE

KNOWN” TEST UNDER THE CONTINUING

VIOLATION DOCTRINE WOULD PARTIC-

ULARLY HARM VICTIMS OF SEXUAL

DET cavaveesedsevneesesecetecess

USE OF A “KNEW OR SHOULD HAVE

KNOWN” TEST UNDER THE CONTINUING

VIOLATION DOCTRINE WOULD INJURE

THE RIGHTS OF EMPLOYEES WITH DIS-

ABILITIES, BY TRIGGERING THE STATUTE

OF LIMITATIONS DURING THE REASON-

ABLE ACCOMMODATION PROCESS.......

THE CONTINUING VIOLATION DOC-

TRINE SHOULD BE APPLIED WHERE AN

EMPLOYEE IS THE VICTIM OF NUMEROUS

SIMILAR DISCRIMINATORY ACTS AND A

HOSTILE WORK ENVIRONMENT .........

THE CALIFORNIA SUPREME COURT’S

RECENT DECISION IN RICHARDS v. CH2M

HILL SHOULD GUIDE THIS COURT IN

INTERPRETING THE CONTINUING VIO-

LATION DOCTRINE UNDER TITLE VII....

ADOPTION OF THE NINTH CIRCUIT OR

THE RICHARDS STANDARD FOR CON-

TINUING VIOLATION WILL NOT

UNFAIRLY HARM EMPLOYERS............

12

16

19

li

TABLE OF CONTENTS - Continued

Page

F. SINCE THIS COURT’S PREVIOUS INTER-

PRETATIONS OF SECTION 706(e) DID NOT

INVOLVE THE CONTINUING VIOLATION

DOCTRINE, THEY ARE DISTINGUISHABLE

AND IRRELEVANT TO THIS CASE......... 28

CONCLUGION ...0000000cce8ee 050 su meena 30

iil

TABLE OF AUTHORITIES

Page

Cases

Accardi v. Superior Court, 17 Cal.App.4th 341

ELKLELE SSOSS PES SEPP LTTTTTTEPELETTTTLELEEE 18

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .... 23

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) .... 23

Anderson v. Reno, 190 F.3d 930 (9th Cir. 1999) ....... 11

Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir. 1999) .... 30

Andrew v. City of Philadelphia, 895 F.2d 1469 (3d

EELS SS EPPO TT TTT TET TTT TTT YS 17

Baskerville v. Culligan Internat’! Co., 50 F.3d 428

etic bcadcaceuscocccecccceccecccccce 11

Bazemore v. Friday, 478 U.S. 385 (1986) .............. 30

Beck v. University of Wisconsin Bd. of Regents, 75

Mi vccvossecoesecscccccccccs 12

Bodiford v. State of Alabama, 854 F.Supp. 886 (M.D.

ENE LESS SSE SEIS PET OOOTSTSETLTL TTT E TY 13

Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336

RCE ri eedsceyesbececcessccccocccces 30

Bultemeyer v. Fort Wayne Community Schools, 100

LS PPT PTT TTT TTT TTT Tee 14

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

EASES EIPP PT OP TTETTTTTT TELE 4, 10, 22, 26

Cardenas v. Massey, 2001 U.S. App. LEXIS 22372

(3d Cir. October 16, 2001) ...........c cece ee eeeeee 30

Chardon v. Fernandez, 454 U.S. 6 (1981).............. 29

iv

TABLE OF AUTHORITIES - Continued

Cox v. U.S. Gypsum Co., 409 F.2d 289 (7th Cir. 1969)

Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998)..... 13

Delaware State College v. Ricks, 449 U.S. 250 (1980) .... 29

Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th

GE: SEEN Sed dbuccdendetcceibaodndedadedieaniedl 8, 11

EEOC vw. Shell Oil Co., 466 U.S. 54 (1984)............ 23

Electrical Workers v. Robbins & Myers, Inc., 429 U.S.

ee Qs 0 6b ckcbddddnnwccdcdbddswadectccedcs beco ae

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

PE oon dvbccncncictedeetiatdcdeecseces 4, 10, 22, 26

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982)......... 23

Galloway v. General Motors Serv. Parts Operations,

oe PS ae 4

Goodman v. Boeing Co., 75 Wash.App. 60, 877 P.2d

703 (1994), aff'd on other grounds, 127 Wash.2d

703, 899 P.2d 1265 (1995)

‘Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) ..11, 17

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) .... 28

Haynes v. Williams, 88 F.3d 898 (10th Cir. re 24

King v. Georgia Power Co., 295 F.Supp. 943 (N.D.

Mes SE 5 8s coccctscovissdshavadintannieeintadniics 7

Lewis v. Board of Trustees, 874 F.Supp. 1299 (M.D.

Sl FONE a 0+ 0benernsseadeasanedebbitbanseancduun 13

Lorance v. AT&T Technologies, Inc., 490 U.S. 900

GED S cnssacanccesaskbedubiecseckialenins cdenuuin 29

Vv

TABLE OF AUTHORITIES - Continued in

Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410 om

(10th Cir. 1993)...... 0. cece cece eee e teen ee eensees

ras ; 2d

Martini v. Boeing Co., 88 Wash.App. 442, 945 P.2

248 (1997), aff'd on other grounds, 137 Wash.2d

357, 971 P.2d 45 (1999) ......-- ccc ceceeeeeeeeeeees 14

McAlindin v. City of San Diego, 192 F.3d 1226 (9th “

Cir. 1999) .....ccccccccccccccccccccccnccccescseees

McKennon v. Nashville Banner Publishing Co., 513 -

U.S. 352 (1995) ..... cc cece cece cece eee e ee eeeeeeees

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) .... 17

Moreman v. Georgia Power Co., 310 F. Supp. 327

(N.D. Ga. 1969)... 0-0 cece cece cere reece ee en ee eneees 7

; , ,

Morgan v. National Railroad Passenger Corp., 23

Fd 1008 (9th Cir. 2000)..........--eeeeeee 16, 17, 28

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. =

6...) Bee eee ;

O'Rourke v. City of Providence, 235 F.3d 713 (1st Cir. sa

BOGE)... ccccccccccccccccccccccsecececccccccsccecees

Ralph v. Lucent Technologies, Inc., 135 F.3d 166 (1st id

Cig, 1998) 2... ccccccccccccccccccccccsecccccceseees

Richards v. CH2M Hill, Inc., 26 Cal.4th 798 (2001) .. passim

Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891 (D. ;

Me. 1970) .......ceeccccccccecccceeeeeececeeeresees

Sosa v. Hiraoka, 920 F.2d 1451 (9th Cir. 1990) ........- 7

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) .... 29

vi

TABLE OF AUTHORITIES - Continued

Page

Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503

ee NE Ss Ukedi dedsadedcdadestcaddecuceencs 17

Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128

PE GbedanedtkcswdenTinddetnedant icbiaskbdcaedan 26

West v. Philadelphia Elec. Co., 45 F.3d 744 (3d Cir.

dada ddbdecdédéuttnachadecscousneseesiens 6, 7, 8

Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th

SED GE Knhanadsunduh ddencddéuldckécecdaudnasdtbue 7

RuLes AND STATUTES

42 U.S.C.

Pe cGhdsakadiedendocesddendécedeusedaomoumele 28

DP Knbbvahandesccdasecatnchadudusidaciekewed 28

PED sdb sndineddddaedstdsuubaddaudidaiia 26

en eddktonciudavatucdnlatdwadiddccuamecdeds 6

Be cdcccvinestuaddccewncosédeunas 6, 18, 20

ns nhadeddueds seuecdeneuccubsdwandua 30

Pe cdbensteubisaneedeneisesadeeacmoias 26

DP Sbtds66 scdeedbenbidonnencated (kunaedecdsad 5, 12

606 tdasandecondcdiindbndndedsiueesenads 5, 12

California Government Code

PRA addey eekiacheoudiadeadddadddaceubk becuue 5, 19

desis need ciouddd ceddctn us duiiticedadencos 19

Vii

TABLE OF AUTHORITIES - Continued

Page

29 C.E.R. ——

OD BOBD o cccccccevcccccccssccccsccescosecccsceccees 27

OD BOTBBE occ cccccccccecccccccccescccccccccecccnss 24

B BESO. BaD)... nc cccccccccccccccccccccccescscseees 12

Appendix to Part 1630 - Interpretative Guid-

ance on Title I of the Americans with Disabil-

i i, ald ie ed eke Keeney 12

OTHER AUTHORITIES

Black’s Law Dictionary (6th ed. 1990)............... 24

EEOC: Technical Assistance on Title I of ADA,

Sf 5 Ea soe EeePC 12

Fitzgerald, Swan and Fischer, Why Didn't She Just

Report Him? The Psychological and Legal Implica-

tions of Women's Responses to Sexual Harassment,

51 Journal of Social Issues 117 (1995)........ 8, 9, 10

Lach and Gwartney-Gibbs, Sociological Perspectives

on Sexual Harassment and Workplace Dispute Reso-

lution, 42 Journal of Vocational Behavior 102

PE cncsuaceetswebedenesGseuus cecdserdceosecees 8, 9

Note, Notice in Hostile Environment Discrimination

Law, 112 Harv.L.Rev. 1977 (1999)..........0.0ceeeee 8

Senate Comm. on Labor and Human Resources, S.

Rep. No. 116, 101st Cong., Ist Sess. (1989)........ 14

Spoon & Ellis, The +o Stigma: Lawsuits Come

Back to Haunt, 70 HR Focus No. 2, p. 19 (Feb.

Tt nnchanéedeseasadseetede Showdeecenvcesseccete 10

Webster’s New International Dictionary (2d ed.

Db edihd oddeeen sche sdSGbsesesceredccceuceeess 24

oa

1

BRIEF OF AMICI CURIAE

The non-profit civil rights organizations and public

agency listed below respectfully submit this brief as amici

curiae.1 The brief supports the position of respondent

Abner Morgan, Jr. and urges the Court to affirm the

decision of the United States Court of Appeals for the

Ninth Circuit. The parties have filed a stipulation with

the Court, consenting to the filing of all briefs of amici

curiae.

INTEREST OF THE AMICI CURIAE

The Impact Fund is a non-profit legal foundation that

provides funding, training, and co-counsel to public

interest litigators across the country. The Impact Fund

focuses its resources on cases which raise issues of civil

and human rights, poverty and environmental justice.

The Impact Fund is currently litigating several race and

gender discrimination class actions under Title VII.

Disability Rights Education and Defense Fund, Inc.

(DREDF), based in Berkeley, California, is a national law

and policy center dedicated to securing equal citizenship

for Americans with disabilities. DREDF pursues its mis-

sion through education, advocacy and law reform efforts,

fighting to ensure that people with disabilities have the

legal protections necessary to vindicate their right to be

free from discrimination.

Public Advocates, Inc. is a non-profit, public interest

law firm, one of the oldest public interest law firms in the

nation. Throughout its history, the firm’s mission has

1 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

been to challenge the persistent, underlying causes and

effects of poverty and discrimination and to work for the

empowerment of the poor and people of color. Public

Advocates uses diverse litigation and non-litigative strat-

egies to handle exclusively policy and impact cases.

The Western Law Center for Disability Rights

(WLCDR) is a non-profit organization that protects and

enforces the civil rights of people with mental and physi-

cal disabilities. Since 1975, the WLCDR has handled dis-

ability rights cases, including numerous employment,

housing, and access cases under California and federal

civil rights laws. The WLCDR provides assistance to per-

sons with disabilities through litigation, mediation, edu-

cation, and referrals to other agencies.

Protection and Advocacy, Inc. (PAI) is a non-profit

organization that provides legal and other advocacy

assistance to Californians with disabilities, including

physical, learning, sensory, mental health and develop-

mental disabilities. Since 1978, PAI has handled disability

rights cases, including employment cases under federal

and state law. Last year, PAI provided assistance to 245

individuals with disabilities regarding employment-

related matters.

The Mexican American Legal Defense and Educa-

tional Fund (MALDEF) is a national civil rights organiza-

tion established in 1967. Its principal objective is to

secure, through litigation, advocacy, and education, the

civil rights of Latinos living in the United States. MAL-

DEF has litigated numerous cases under Title VII since

the organization’s founding. Preserving the right of Lat-

inos to be free of discrimination in all aspects of employ-

ment is a primary goal of MALDEF Employment

program.

oe ee

3

Equal Rights Advocates (ERA) is a San Francisco-

based human and civil rights organization dedicated to

protecting and securing equal rights and economic

opportunities for women and girls through litigation and

advocacy. Since its inception in 1974 as a teaching law

firm focused on sex-based discrimination, ERA has

undertaken difficult impact litigation that has resulted in

establishing new law and has provided significant bene-

fits to large groups of women.

The Asian Pacific American Legal Center of Southern

California (APALC) is the largest provider of direct legal

services, civil rights advocacy, community education and

impact litigation for low-income Asian Pacific Americans

in the country. Since 1982, APALC has represented Asian |

Pacific Americans in a number of areas, including anti-

discrimination, workers’ rights, family law, immigration

and hate crimes.

The Legal Aid Foundation of Los Angeles (LAFLA)

has been providing civil legal services to low-income

people in metropolitan Los Angeles for over 70 years.

Through litigation and other representation, LAFLA

helps working poor and low-wage workers address prob-

lems with pay, including minimum wage, overtime, and

other pay-related problems, retaliation and discrimina-

tion in the workplace, and problems faced by former

welfare recipients who are now working.

The Michigan Department of Civil Rights (MDCR) is

a principal department of Michigan state government and

is charged with enforcing the state’s anti-discrimination

laws. The state anti-discrimination laws which MDCR

enforces prohibit, inter alia, discrimination in employ-

ment based upon religion, race, color, national origin,

age, sex, height, weight, marital status or disability.

4

SUMMARY OF ARGUMENT

Although the continuing violation doctrine has been

applied under Title VII since the early days of the statute,

defendant and petitioner National Railroad Passenger

Corporation [“Amtrak”] has argued that the doctrine

should be recognized only in hostile environment harass-

ment cases —- and even then, should be unavailable if,

before the start of the limitations period, the plaintiff

knew or should have known that she (or he) was the

victim of discrimination. Galloway v. General Motors Serv.

Parts Operations, 78 F.3d 1164 (7th Cir. 1999).

Use of a “knew or should have known” standard in

applying the continuing violation doctrine would have

serious consequences in hostile environment sexual

harassment cases. Sociological and psychological research

has proven that the least frequent response by victims of

sexual harassment is filing a formal complaint or a law-

suit. Because of fear of retaliation, humiliation and career

detriment, women employees generally pursue informal,

non-confrontational methods to try to stop sexual harass-

ment, consistent with this Court’s decisions in Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher

v. City of Boca Raton, 524 U.S. 775 (1998). Under Amtrak’s

proposed standard, female employees who used any

informal complaint processes would probably be held to

have demonstrated that they “knew or should have

known” that they were victims of discrimination. Conse-

quently, the continuing violation doctrine would cease to

apply in hostile environment cases, where even Amtrak

concedes it is appropriate.

A “knew or should have known” standard of con-

tinuing violation would severely harm the rights of

employees with disabilities. The Court’s interpretation of

the continuing violation doctrine under Title VII applies

To,

——

5

equally to the Americans with Disabilities Act of 1990, 42

U.S.C. §§ 12101 et seq. (ADA), because Title | of the ADA

incorporates Title VII’s procedures, including its statute

of limitations. 42 U.S.C. § 12117(a). Employees with dis-

abilities must identify their disability and engage in

ongoing interactive dialogue with their employer to find

reasonable accommodations for their disabilities. By

doing so, however, they will arguably be demonstrating

that they “knew or should have known” that they were

being discriminated against, thus triggering the statute of

limitations and making the continuing violation doctrine

unavailable.

Amtrak’s further argument that the continuing viola-

tion doctrine cannot apply to a “discrete discriminatory

act” is irrelevant here. In five years at Amtrak, Abner

Morgan, Jr. was disciplined or counseled ten times, was

denied training and other career opportunities five times,

and experienced three acts of retaliation - a!l in the con-

text of a racially hostile environment which demeaned

and insulted African-American employees. The same five

managers perpetrated all these incidents and created the

racially hostile environment. The Ninth Circuit properly

held the particular incidents must be viewed as part of

the same continuing violation.

In addition to the Ninth Circuit’s analysis, this Court

should take guidance from the California Supreme

Court’s careful and thorough review of the continuing

violation doctrine in Richards v. CH2M Hill, Inc., 26

Cal.4th 798 (2001). Although Richards interpreted the Cal-

ifornia Fair Employment and Housing Act (FEHA), Cal.

Government Code, §§ 12900 et seq., its analysis is persua-

sive in interpreting Title VII because the objectives and

relevant wording of the two statutes is so similar.

6

Richards rejected the “knew or should have known” test

urged by Amtrak.

Adoption of the Ninth Circuit or the Richards test for

continuing violation will not unfairly harm employers.

There is no empirical evidence that workers purposely

delay in filing EEOC charges to win some alleged finan-

cial or strategic advantage. In fact, delay does not benefit

employees financially. Title VII restricts compensation

through its two-year limit on backpay and its stringent

caps on compensatory and punitive damages.

Finally, this court’s previous interpretations of sec-

tion 706(e) are irrelevant here because the earlier deci-

sions did not involve the continuing violation doctrine.

They all concerned a single, time-barred act, not as in this

case, a lengthy series of related acts, many of which were

within the limitations period.

ARGUMENT

I. INTRODUCTION

Title VII of the Civil Rights Act of 1964 bars employ-

ment discrimination on the basis of race, inter alia. 42

U.S.C. §§ 2000e-2 et seq. Section 706(e) of Title VII, 42

U.S.C. § 2000e-5(e)(1), requires employees claiming

unlawful discrimination to file a charge with the Equal

Employment Opportunity Commission (EEOC) within

180 days “after the alleged unlawful employment practice

occurred.” If the employee first files with a state or local

agency, the time to file with the EEOC is 300 days. Ibid.

From early in the history of Title VII, courts have

recognized the “continuing violation doctrine” as an

equitable exception to the statute of limitations in section

706(e). West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d

7

Cir. 1995).2 As its name suggests, the continuing violation

doctrine may be applied when discriminatory conduct

continues over a considerable period of time, some of

which is before the start of the limitations period. Where

applicable, the doctrine permits the aggrieved employee

to introduce evidence of, and recover damages for, both

the pre- and post-limitations period discrimination so

long as the employee files an EEOC charge within 180 (or

300) days after the last occurrence of discrimination. West

v. Philadelphia Elec. Co., supra, 45 F.3d at 755.

A plaintiff can establish a continuing violation by

showing a series of related acts, one or more of which are

within the limitations period - a serial violation. Sosa v.

Hiraoka, 920 F.2d 1451, 1455 (9th Cir. 1990). Alternatively,

the plaintiff can show a systematic policy or practice of

discrimination that operated, in part, within the limita-

tions period - a systemic violation. Williams v. Owens-

Illinois, Inc., 665 F.2d 918, 924 (9th Cir. 1982). The present

case involves a serial violation.

2 The continuing violation doctrine was applied in

numerous early Title VII decisions. See, e.g., Cox v. U.S. Gypsum

Co., 409 F.2d 289, 290 (7th Cir. 1969) [layoff and refusal to recall

constitute continuing violations]; Sciaraffa v. Oxford Paper Co.,

310 F.Supp. 891, 896-897 (D. Me. 1970) [same]; Moreman v.

Georgia Power Co., 310 F.Supp. 327, 328 (N.D. Ga. 1969) [use of

discriminatory tests is continuing violation]; King v. Georgia

Power Co., 295 F.Supp. 943, 946 (N.D. Ga. 1968) [maintenance of

racially segregated facilities and promotional opportunities

constitute continuing violations].

8

A. USE OF A “KNEW OR SHOULD HAVE

KNOWN” TEST UNDER THE CONTINUING

VIOLATION DOCTRINE WOULD PARTIC-

ULARLY HARM VICTIMS OF SEXUAL

HARASSMENT.

The rule proposed by Amtrak would wreak havoc in

hostile environment sexual harassment cases, which

involve ongoing patterns of abuse that are especially

well-suited to the continuing violation doctrine. See West

v. Philadelphia Elec. Co., supra, 45 F.3d at 755 [“natural

affinity” between hostile work environment and continu-

ing violation claims]; Draper v. Coeur Rochester, Inc., 147

F.3d 1104, 1108 (9th Cir. 1998) [same]. Sociological and

psychological research has demonstrated that the least

frequent recourse by victims of sexual harassment is filing

a formal complaint or a lawsuit. Since Amtrak's proposed

standard would require an employee to file an EEOC

charge as soon as she knew or should have known that

she was being harassed - or be barred from recovering

for all conduct before the limitations period - employers

would escape liability for most sexual harassment.

Two major academic articles extensively analyze

women’s responses to sexual harassment. Why Didn't She

Just Report Him? The Psychological and Legal Implications of

Women’s Responses to Sexual Harassment, 51 Journal of

Social Issues 117 (1995) by Fitzgerald, Swan and Fischer,

and Sociological Perspectives on Sexual Harassment and

Workplace Dispute Resolution, 42 Journal of Vocational

Behavior 102 (1993) by Lach and Gwartney-Gibbs. See also

Note, Notice in Hostile Environment Discrimination Law,

112 Harv.L.Rev. 1977 (1999). The Fitzgerald and Lach

articles, in turn, review over 100 other sexual harassment

studies.

Se |

9

The Fitzgerald article concludes, “By far the most

infrequent response is to seek institutional / organizational

relief (i.e., notifying a supervisor, bringing a formal com-

plaint, and filing a lawsuit). Victims apparently turn to

such strategies as a last resort when all other efforts have

failed.” Fitzgerald, et al., supra, at 121 [italics added]. The

most common responses, according to Fitzgerald, are the

least confrontational ones: “victims are more likely to talk

with a supervisor than to file a formal complaint, and

legal claims are by far the least common response ~ truly

the ‘court of last resort.’ ” Ibid. Even among women who

labeled their experience as harassment - and thus pre-

sumably met Amtrak’s “knew or should have known

standard - one national study found that 74 percent

responded by telling the harasser to stop while only 12

percent filed a complaint of any kind. Id. at 122.

The Lach article similarly reports that women prefer

to resolve harassment disputes through informal means,

such as stalling or ignoring the harasser; confronting the

harasser either politely or more directly; or reporting the

harasser to a higher authority. Only a very small number

used “formal complaint channels,” presumably internal

complaint procedures. Lach, et al., supra, at 110.

The most common reason for not formally reporting

harassment is fear, according to both articles - fear of

retaliation, of not being believed, of hurting one’s career,

or of being humiliated. Sadly, retaliation is common and

the most assertive employees suffer the greatest costs.

One study of female state employees reported that 62

percent of those who complained of sexual harassment

experienced retaliation, including lowered job evalua-

tions, denial of promotions, and being transferred or

fired. In a survey of sexual harassment of federal workers

10

conducted by the U.S. Merit Systems Protection Board,

one-third of employees who filed formal claims said it

only “made things worse.” According to a study of sexual

harassment in the Navy, one-third of harassment victims

reported they were humiliated in front of others when

they complained. Another survey concluded that women

who responded assertively to harassment had more nega-

tive outcomes in terms of their jobs, their emotional well-

being and their health. Fitzgerald, et al., supra, at 122-123.

Lach, et al., supra, at 110-111.

Retaliation by potential future employers is also a

serious problem. In a 1992 survey of 1100 California

companies, 75-80 percent of the responding employers

admitted they would not give equal consideration to job

applicants who had sued their former employers for

wrongful termination, sexual harassment, unequal pay or

failure to promote, even if the suits were valid and justi-

fiable. Applicants who were in the midst of litigation

fared even worse; 87 percent of the respondents would

not consider the person equally with other candidates.

Spoon & Ellis, The Litigation Stigma: Lawsuits Come Back to

Haunt, 70 HR Focus No. 2, p. 19 (Feb. 1993).

Thus, Amtrak’s proposed “knew or should have

known” standard would have a devastating effect on

sexual harassment victims. It would deny relief for events

which were part of an ongoing pattern of discriminatory

treatment but were not the subject of an immediate EEOC

charge. An employee who tried to work out problems

informally with her employer — as most women do and as

this Court required in Burlington Industries, Inc. v. Ellerth,

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

U.S. 775 (1998) - would face the very real danger that a

court would decide she had waited too long and had

11

forfeited her right to relief for the earlier incidents

because she knew or should have known the initial con-

duct was discriminatory. And because creation of a hos-

tile work environment depends on the accumulation of

many incidents, excluding the earlier incidents would

make it far more difficult for the plaintiff to establish

liability for the later events that were within the limita-

tions period.’

Moreover, if the employee did file a discrimination

charge and pursue litigation at the time of the first dis-

criminatory act, that conduct, standing alone, might not

survive summary judgment if the challenged actions

were not sufficiently “severe or pervasive.” Harris v. Fork-

lift Systems, Inc., 510 U.S. 17, 21-22 (1993); Baskerville v.

Culligan Internat’! Co., 50 F.3d 428, 431 (7th Cir. 1995). The

bottom line is that, under Amtrak’s proposed standard,

hostile environment sexual harassment victims run the

real risk of being both too early and too late.‘

3 See Anderson v. Reno, 190 F.3d 930, 934 (9th Cir. 1999)

[district court found no hostile environment after excluding

earlier incidents; appellate court reversed, finding continuing

violation]; Draper v. Coeur Rochester, Inc., supra, 147 F.3d 1104

[same]; Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1418

(10th Cir. 1993) [same].

4 Federal courts have sometimes recognized that using the

“knew or should have known” standard produces such

draconian results that they have not strictly applied the test. See,

e.g., O'Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001)

[continuing violation doctrine applied because female

firefighter, who endured nearly four years of intense sexual

harassment before filing EEOC charge, might not have realized

there was actionable discrimination].

12

B. USE OF A “KNEW OR SHOULD HAVE

KNOWN” TEST UNDER THE CONTINUING

VIOLATION DOCTRINE WOULD INJURE

THE RIGHTS OF EMPLOYEES WITH DIS-

ABILITIES, BY TRIGGERING THE STATUTE

OF LIMITATIONS DURING THE REASON-

ABLE ACCOMMODATION PROCESS.

Adoption of the “knew or should have known” stan-

dard of continuing violation would injure the rights of

employees with disabilities. Title I of the Americans with

Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (ADA),

incorporates the enforcement procedures of Title VII

including its statute of limitations. 42 U.S.C. § 12117(a).

Consequently, this Court’s interpretation of the continuing

violation doctrine under Title VII will apply to the ADA.

| The ADA requires that employees with disabilities

identify their disabilities in order to obtain reasonable

accommodation on the job. Beck v. University of Wisconsin

Bd. of Regents, 75 F.3d 1130, 1134-1135 (7th Cir. 1996).

Reasonable accommodation is a modification to a job or

the work environment that enables a qualified individual

with a disability to attain the same level of performance

or enjoy equal benefits of employment as are available to

a similarly-situated person without a disability. EEOC:

Technical Assistance on Title I of ADA, BNA FEP

405:6981, 6999. Thereafter, the employee and employer

must engage in an ongoing interactive dialogue, identify-

ing accommodations that will enable the worker to per-

form the essential functions of the job. Beck, ibid.; see 29

C.FR. § 1630.2(0)(3) [“informal, interactive process”

involving both employer and employee]; 29 C.F.R.

Appendix to Part 1630 - Interpretative Guidance on Title

I of the Americans with Disabilities Act [“flexible, inter-

active process” ].

13

The obligation to accommodate an employee's dis-

ability is a “continuing duty that is not exhausted by one

effort.” McAlindin v. City of San Diego, 192 F.3d 1226, 1237

(9th Cir. 1999) [internal quotations omitted], quoting

Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 172 (1st Cir.

1998) and Criado v. IBM Corp., 145 F.3d 437, 445 (1st Cir.

1998). Moreover, for some disabilities, the employee's

condition may change over time, requiring a revisting of

appropriate accommodation. Additional discussions may

also be required to fine-tune a particular accommodation

to meet the needs of both employee and employer. For

these reasons, negotiations about accommodations may

last beyond the 180- or 300-day limitations period.

The California Supreme Court recently analyzed the

continuing violation doctrine in the context of claims of

failure to accommodate and disability harassment in Rich-

ards v. CH2M Hill, Inc., supra, 26 Cal.4th 798. The court

noted there was “particularly good reason to view the

failure over time to reasonably accommodate a disabled

employee as a single course of conduct.” 26 Cal.4th at

821. Reasonable accommodation “is often an ongoing

process rather than a single action” and “this process may

have many facets and take a number of different forms.”

Id. at 821-822. As with harassment, an instance of an

employer's failure to accommodate that in isolation may

seem trivial “can assume greater significance and consti-

tute a greater injury when viewed as one of a series of

failures.” Id. at 822.°

5 For this reason, both federal and state courts, applying

the ADA or state discrimination statutes, have found a

continuing violation for the entire course of an employer's

discrimination against employees with disabilities. See Lewis v.

Board of Trustees, 874 F.Supp. 1299, 1304 (M.D. Ala. 1995);

Bodiford v. State of Alabama, 854 F.Supp. 886, 891 (M.D. Ala.

——a

14

As applied to the ADA, the “knew or should have

known” standard would require employees with disabil-

ities to file an EEOC charge each time the employer failed

to provide a particular accommodation within 180 (or

300) days of the time it was first requested. If the

employee did not, the employer could claim that, by

requesting accommodations, the employee demonstrated

awareness of his legal rights and should be barred from

asserting that he was entitled to that accommodation. The

ADA’s requirement of individualized assessment and

interactive discussions of possible accommodations

would be undermined by a steady stream of discrimina-

tion charges, EEOC investigations, and the threat of

imminent court litigation. Instead of promoting the neces-

sary communication and cooperation between employees

with disabilities and their employers (Bultemeyer v. Fort

Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir.

1996)), Amtrak’s rule would produce confrontation and

controversy.

The “knew or should have known” standard also

disregards the enormous external barriers to employment

that people with disabilities face. Notably, one of the key

Congressional motivations behind the ADA was the stag-

gering level of unemployment for persons with disabil-

ities.© While the prospects for employment of people with

1994); Martini v. Boeing Co., 88 Wash.App. 442, 945 P.2d 248, 254

(1997), aff'd on other grounds, 137 Wash.2d 357, 971 P.2d 45 (1999);

Goodman v. Boeing Co., 75 Wash.App. 60, 877 P.2d 703, 712-714

nem aff'd on other grounds, 127 Wash.2d 703, 899 P.2d 1265

® See, e.g., Senate Comm. on Labor and Human Resources,

S. Rep. No. 116, 101st Cong., 1st Sess., at 9 (1989) (“Individuals

with disabilities experience staggering levels of unemployment

and poverty. According to a recent Lou Harris poll not working

—

— ee

15

disabilities have improved since the passage of the ADA,

discrimination and unemployment remain severe prob-

lems. These statistics are documented in the N.O.D./

Harris 2000 Survey of Americans with Disabilities

(“N.O.D. Survey”), excerpts of which may be found on

the website for the National Organization on Disability,

www.nod.org. As the report notes, “there has been a

significant increase in the percentage of people with dis-

abilities who are able to work and are working from 46%

in 1986 to 56% today.” But nevertheless, according to the

N.O.D. Survey, a decade after the ADA’s enactment,

“more than 3 out of 10 employed people with disabilities

(36%) say they have encountered some form of discrimi-

nation in the workplace due to their disabilities, the most

prevalent of which is not being offered a job for which

they are qualified. More than half (51%) of those who

have experienced discrimination say they have been

refused a job due to their disabilities.”

Given the continued prevalence of discrimination in

the American workplace, which dramatically affects the

re-employment prospects for people with disabilities,

employees with disabilities may delay filing a formal

charge of employment discrimination out of fear that it

would alienate their employer or even risk their job and

health insurance benefits. In short, imposing a “knew or

should have known” test in construing the continuing

is perhaps the truest definition of what it means to be disabled

in America. Two-tnirds of all disabled Americans between the

age of 16 and 64 are not working at all; yet, a large majority of

those not working say that they want to work. Sixty-six percent

of working-age disabled persons, who are not working, say that

they would like to have a job. Translated into absolute terms,

this means that about 8.2 million people with disabilities want

to work but cannot find a job.”)

16

violation doctrine under Title VII would seriously com-

promise the federally guaranteed civil rights of

employees with disabilities.

C. THE CONTINUING VIOLATION DOCTRINE

SHOULD BE APPLIED WHERE AN

EMPLOYEE IS THE VICTIM OF NUMEROUS

SIMILAR DISCRIMINATORY ACTS AND A

HOSTILE WORK ENVIRONMENT.

. Amtrak’s argument that the continuing violation doc-

trine cannot apply to a “discrete discriminatory act” has

no relevance here. Abner Morgan was the victim of ten

disciplinary and counseling incidents, five instances of

denial of career opportunities (including denial of train-

ing, being barred from an apprenticeship program and

being hired as an electrician helper instead of as an

electrician) and at least three incidents of retaliation. Mor-

gan v. National Reilroad Passenger Corp., 232 F.3d 1008

1016-17 (9th Ci 10). These 18 episodes occurred in the

context of ara uy hostile environment in which Afri-

can-American employees were being demeaned, insulted

called “nigger” and “boy” and told to “get [their] black

ass” into the ofice. Significan‘ly, the 18 incidents and the

“racially-laden environment” were perpetrated by the

same five managers. Id.

In its decision, the Ninth Circuit recognized that the

numerous incidents were part of a continuing pattern:

These incidents reveal a consistent pattern of similar

employment actions (e.g., discipline and denial of profes-

sional training) over the entire five-year period of

employment, perpetrated by the same core group of man-

agers. Such incidents are not discrete or isolated.” 232 F.2d at

1016 [italics added]. The court carefully analyzed the

17

evidence to determine whether the same kinds of dis-

criminatory conduct occurred both before and within the

limitations period. The court also noted that the evidence

of each alleged violation “significantly overlaps,” so that

“segregating them is both a difficult and artificial task.”

Ibid. at n. 16. Viewing the pre-limitations acts in the

“context of the totality of Morgan’s relationship with

Amtrak,” the court concluded that the earlier incidents

were “part of a series or pattern of discrimination, retalia-

tion, and hostile environment that started nearly contem-

poraneously with Morgan’s employment and continued

throughout his tenure.” Id. at 1017.7

Such analysis falls squarely within this Court's oft-

repeated warnings that the existence of discrimination

must be determined in light of “tne record as a whole,”

“the totality of circumstances,” and “all the circum-

stances.” Oncale v. Sundowner Offshore Services, Inc., 523

U.S. 75, 81-82 (1998); Harris v. Forklift Systems, Inc., supra,

510 U.S. at 23; Meritor Savings Bank v. Vinson, 477 U.S. 57,

69 (1986). Accord: Andrew v. City of Philadelphia, 895 F.2d

1469, 1484 (3d Cir. 1990) [discrimination analysis must

concentrate on the overall scenario, not on individual

incidents]; Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d

1503, 1510 (11th Cir. 1989) [factfinder should not examine

each alleged incident of harassment in a vacuum]. A trier

of fact might reasonably find that the combined evidence

of disciplinary incidents, denials of career opportunities,

acts of retaliation, and racially hostile environment

7 The fact that the same five managers were responsible for

all the discriminatory acts was not necessary for application of

the continuing violation doctrine but certainly unrercuts

Amtrak’s argument that these were “discrete” or “ isolated”

incidents. Morgan, supra, 232 F.3d at 1014-1017.

18

proved that Amtrak managers were “motivated by gen-

eral hostility to the presence of [African-Americans] in

the workplace.” Oncale, supra, 523 U.S. at 80.

The Ninth Circuit’s reasoning is consistent with Sec-

tion 706(e)’s key phrase, “alleged unlawful employment

practice.” 42 U.S.C. § 2000e-5(e)(1). As noted in Richards

v. CH2M Hill, Inc., supra, 26 Cal.4th at 818, and discussed

infra, the dictionary definition of “practice” includes

“repeated or customary action; habitual performance; a

succession of acts of similar kind; custom; usage.” By this

definition, the ten incidents of discipline certainly consti-

tute a “practice,” as do the five episodes of denial of

career opportunities and the three incidents of retaliation.

These events were not isolated or discrete acts.

A California court of appeal confronted a similar

issue in a sex discrimination case under the California

FEHA, Accardi v. Superior Court, 17 Cal.App.4th 341

(1993). In Accardi, a female police officer was subjected to

years of sexual harassment and discrimination. When she

later suffered a knee injury, her employer denied her light

duty assignments that male officers received and also

prepared false medical reports about her. Although only

the post-injury incidents were within the FEHA one-year

limitations period, the court held the continuing violation

doctrine allowed the plaintiff to introduce evidence of the

long history of sexual harassment and discrimination.

The gist of the plaintiff’s complaint, the court stated, was

that the police department waged “a decade-long cam-

paign against her,” based on an unwritten policy that law

enforcement is a “man’s job.” 17 Cal.App.4th at 350. The

denial of light duty and false medical reports may have

been undertaken with the same discriminatory purpose -

“ridding the police department of female officers.” Id. at

~

19

351. “If credited, these acts constitute a continuous mani-

festation of a sex-based animus that would bring the

prior acts within the statute of limitations.” Ibid.

Consequently, this case presents no opportunity for

this Court to decide whether the continuing violation

doctrine can apply to what Amtrak calls a “discrete ce

criminatory act.” Rather, consistent with the Court's

emphasis on the “totality of circumstances, the Court

should hold that when agents of an employer commit

numerous similar discriminatory acts while creating a

hostile work environment, the particular incidents should

be considered part of the same continuing violation.

. E CALIFORNIA SUPREME COURT’S

y RECENT DECISION IN RICHARDS v. CH2M

HILL SHOULD GUIDE THIS COURT IN

INTERPRETING THE CONTINUING VIOLA-

TION DOCTRINE UNDER TITLE VII.

In Richards v. CH2M Hill. Inc., supra, 26 Cal.4th 798,

the California Supreme Court recently issued a definitive

discussion of the continuing violations doctrine which

should serve as guidance to this Court, along with the

Ninth Circuit’s analysis. Although Richards interpreted

the California Fair Employment and Housing Act

(FEHA), Cal. Gov. Code, §§ 12900 et seq., its reasoning is

persuasive in interpreting Title VII because the anti-

discrimination objectives and relevant wording of title

VII .. . are similar to those of the FEHA.” Richards, supra,

26 Cal.4th at 812. Indeed, the language of the FEHA and

Title VII statutes of limitations is strikingly similar. The

FEHA bars the filing of an administrative complaint more

than one year “from the date upon which the alleged

unlawful practice . . . occurred.” Cal. Gov. Code, § 12960.

Title VII provides that a charge shall be filed within 180

20

(or 300) days “after the alle

, ged unlawful

practice occurred.” 42 U.S.C. § we

Plaintiff Lachi Richards had worked as an enginee

for CH2M Hill for four years when in 1988 ae

diagnosed with multiple sclerosis and started to use a

wheelchair. Immediately thereafter, she began to experi-

ence various types of harassment at work. Over the ven

five years, until her resignaticn in early 1993, Richards

repeatedly asked her employer for accommodations for

her disability, including the removal of physical barriers

throughout the office. After much delay, the company

made some changes but

never provided man

requested accommodations. ee

Richards resigned and filed an administrative com-

plaint with the California Department of Fair Housi

(DFEH) and later filed a civil action under the FEHA -

disability harassment and discrimination. CH2M Hill

moved to exclude evidence of conduct before Janua 28

1993, one year before the filing of Richards’ ar ae a

tive complaint. The trial court denied the motion, and at

trial Richards was permitted to introduce evidence of

and seek damages for, the entire five-year period,

1988-1993. The jury found CH2M Hill had created a hos-

tile work environment and failed to reasonably accommo-

date Richards’ disability and awarded sizable damages.

FO 3 pe Court of Appeal reversed, holding the

oo a misapplied the continuing violation doc-

e and had improperly allowed the jury to award

damages for injuries occurring outside the one-year lim-

ey period. Citing many of the federal cases relied on

y Amtrak herein, the court held the statute of limitations

- was tolled only up to the point Richards “knew or should

have known” that her rights were being violated. Under

21

that test, all employer conduct occurring before the lim-

itations period was time-barred.

The California Supreme Court reversed, rejecting the

“knew or should have known” standard. After reviewing

numerous approaches to the continuing violation doc-

trine under federal case law, the high court held that an

employer's series of unlawful actions should be viewed

as a single, actionable course of conduct if (1) the actions

are sufficiently similar ia kind; (2) they occur with suffi-

cient frequency; and (3) they have not acquired such a

degree of permanence that the employee is on notice that

further efforts at informal conciliation with the employer

to end discrimination or harassment would be futile. 26

Cal.4th at 802, 823. The statute of limitations will begin to

run when either (1) the discriminatory “course of con-

duct” is brought to an end by the employee’s termination,

resignation, or constructive discharge or by the

employer’s cessation of such conduct, or (2) the employer

makes clear to the employee “in a definitive manner” that

further efforts at informal conciliation will be futile. Id. at

823.8

Richards reasoned that employees should be encour-

aged to pursue informal conciliation with their employer

rather than immediately initiating litigation by filing an

administrative complaint with the DFEH. “[I}t is contrary

to the purposes of the FEHA to interpret its statute of

limitations to encourage premature litigation at the

8 This conduct by the employer must be more than simply a

statement denying liability for a particular act in the course of

conduct or a statement that insufficient evidence exists to

corroborate a particular occurrence or to take corrective action.

Instead, the employer must make clear that the employee

should no longer file complaints or expect any further

investigation or informal conciliation efforts.

22

expense of informal conciliation.” Id. at 820. Requiring an

employee to file with the administrative agency while he

or she is still employed “would reduce sharply any

chance of conciliation between employer and employee

and draw the Department into investigations that might

have been avoided through informal conciliation.” Ibid. In

most cases, an employee would feel compelled to resign

“to avoid the awkwardness of maintaining employment

while pursuing litigation against his or her employer.”

Ibid. An employer that creates or tolerates a persistent

pattern of harassment or other discrimination cannot

complain of the employee’s delay in filing when the

employee retains employment in hopes informal concilia-

tion will succeed. Id. at 822.

In short, said the Richards court, the statute of limita-

tions should not be interpreted to give a victim of dis-

crimination two unappealing choices: (1) resigning and

bringing legal action soon after the first signs that his or

her rights have been violated, or (2) attempting to persist

in the informal conciliation process and risk forfeiting the

right to bring such an action altogether. Id. at 821.

Richards’ emphasis on conciliation over litigation and

on using informal procedures to resolve worksite prob-

lems echoes this Court’s approach in recent Title VII

cases. In Burlington Industries, Inc. v. Ellerth, supra, 524

U.S. 742, the Court stressed “Congress’ intention to pro-

mote conciliation rather than litigation in the Title VII

context” and praised the EEOC’s policy of encouraging

companies to adopt internal complaint procedures so

employees can report harassing conduct before it

becomes severe or pervasive. Id. at 764. Accord: Faragher v.

City of Boca Raton, supra, 524 U.S. at 806 [Title VII's

“primary objective” is “not to provide redress but to

avoid harm.”]. Accordingly, in Ellerth and Faragher, the

23

Court held that in hostile environment sexual harassment

cases involving no tangible employment action against

the employee, an employer could claim an affirmative

defense to liability only if it had established internal

complaint procedures to correct harassing behavior and

the harassed employee had unreasonably failed to use

those procedures.

Similarly, in Ford Motor Co. v. EEOC, 458 US. 219, 228

(1982), the Court declared the “primary objective” of Title

VII is to “bring employment discrimination to an end,

and the “preferred means for achieving this goal te

through ‘[c]ooperation and voluntary compliance.

[Quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 417

(1975) and Alexander v. Gardner-Denver Co., 415 US. 36, 44

(1974)] The victims of job discrimination “want jobs, not

lawsuits,” the Court stated. Ford Motor Co., supra, 458 U.S.

at 230. Accordingly, the Court adopted a legal rule

designed to encourage Title VII defendants promptly to

make curative, unconditional job offers to Title VII claim-

ants. See also EEOC v. Shell Oil Co., 466 U.S. 54, 77 (1984)

[Congress hoped to encourage employers to comply vol-

untarily with Title VII]; McKennon v. Nashville Banner

Publishing Co., 513 U.S. 352, 358 (1995) [Congress

intended remedial measures in Title VII and ADEA to

serve as “spur or catalyst” to cause employers to “self-

examine and to self-evaluate their employment prac-

tices.”]

Richards’ interpretation of the term “unlawful prac-

tice” in the FEHA is directly applicable to Title VII, which

uses the nearly identical term “unlawful employment

practice.” As the California court noted (26 Cal.4th at

818), both lay and legal dictionaries define the term

“practice” to mean a course of conduct. For example,

Webster's defines “practice” as “to do or perform often,

24

customarily, or habitually; to make a practice of.” Webs-

ter’s New International Dictionary, p. 1937, col. 3 (2d ed.

1958). Similarly, Black’s Law Dictionary defines “prac-

tice” as “[r]epeated or customary action; habitual perfor-

mance; a succession of acts of similar kind; custom;

usage.” Black’s Law Dictionary, p. 1172, col. 1 (6th ed.

1990). Thus, in the context of a continuing violation,

“unlawful practice” refers to the entire discriminatory

course of conduct. Precisely the same is true of Title VII's

analogous term, “unlawful employment practice.” View-

ing a pattern of related discriminatory acts as a single

actionable wrong is consistent with this language. So long

as the employee files his charge within the limitations

period following the last illegal act, the charge is timely.

Richards was also influenced by the California stat-

ute’s mandate that its provisions “shall be construed

liberally for the accomplishment of the purposes thereof.”

Cal. Gov. Code, § 12993(a). To carry out the FEHA’s

purpose of safeguarding the right of employees to hold

employment without discrimination, this liberal construc-

tion must extend to interpretations of the FEHA’s statute

of limitations, the Supreme Court held. Richards, supra, 26

Cal.4th at 819. But Title VII also requires a liberal inter-

pretation. Haynes v. Williams, 88 F.3d 898, 901 (10th Cir.

1996). It is equally fitting that such an interpretation

apply to Title VII's statute of limitations. See 29 C.FR.

§ 1601.34 [“rules and regulations shall be liberally con-

on to effectuate the purpose and provisions of Title

Congress clearly so intended in 1972, when it

amended Title VII to extend the EEOC charge-filing

period from 90 to 180 days. In the Final Conference

Committee Report, Congress proclaimed that it intended

to adopt prior court decisions which “have shown an

25

inclination to interpret this time limitation so as to give

the aggrieved person the maximum benefit of the law... . ”

Section-by-Section Analysis of H.R. 1746, 118 Cong. Rec.

7167 (Senate), 118 Cong. Rec. 7565 (House) [italics

added]. The Conference Report specifically stated that

Congress intended to “continue” “existing 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... . “

Ibid. The report also provided that “other interpretations

of the courts maximizing the coverage of the law are not

affected.” Ibid. See footnote 2, supra, for early continuing

violations decisions.

In short, the California Supreme Court's thoughtful

interpretation of continuing violation in Richards v. CH2M

Hill is consistent with the language, purposes, and legis-

lative history of Title VII. This court should apply Rich-

ards’ reasoning in interpreting the continuing violations

doctrine under Title VII.

E. ADOPTION OF THE NINTH CIRCUIT OR

THE RICHARDS STANDARD FOR CONTINU-

ING VIOLATION WILL NOT UNFAIRLY

HARM EMPLOYERS.

Employers will not be unfairly disadvantaged if this

Court adopts the continuing violation doctrine as applied

by the Ninth Circuit or by the California Supreme Court

in Richards v. CH2M Hill, supra.

Amtrak’s argument that the continuing violation doc-

trine should not be available to employees who “know-

ingly” let the limitations period expire has no basis in

fact. There is no empirical evidence that workers deliber-

ately wait to file EEOC charges to secure some alleged

26

strategic or financial advantage. Rather, as demonstrated

supra, employees delay in filing formal discrimination

oe with the EEOC or a state agency because they do

) now their rights, they do not recognize the

employer's conduct as discriminatory, they are trying to

work out problems informally with their employer, o

they fear retaliation. rapa

At any rate, employers have ample protection a

a who delay filing without vaitiination In ome

€ environment sexual harassment cases, where even

Amtrak concedes the continuing violation doctrine can

properly apply, an employee’s unreasonable failure to

= none complaint procedures provides an affirma-

a - ense against liability. Burlington Industries, Inc. v.

a ~ ps ge a 742; Faragher v. City of Boca Raton

ra, S. - In ADA cases, employers a

— because employees with disabilities a pew

Y request reasonable accommodation and thus

employers can prepare against a possible EEOC charge.

| Moreover, delay does not benefit employees finan-

cially because Title VII severely restricts back pay and

ee eng pay is limited to two years from the

oe ation charge, regardless of when it is filed. 42

S.C. § 2000e-5(g)(1). Compensatory and punitive dam-

ages, originally unavailable, are permitted but severe]

limited since the 1991 amendments. For employers oe

— than 500 employees, compensatory and punitive

amages together are capped at $300,000. For smaller

employers, the cap ranges from $50,000

U.S.C. § 1981a(b)(3).9 seni

* By comparison, no such limi ornia

, ts apply under California’

“ poo In Richards, the plaintiff was awarded nearly $1 million

“economic damages. In Weeks pv. Baker & McKenzie, 63

27

Further, the traditional arguments in favor of strict

enforcement of statutes of limitations - a defendant's

interest in marshaling evidence while memories are fresh

and witnesses are available, the value of finality and

repose, and the avoidance of “staleness” - actually are

consistent with, and indeed support, a broad continuing

violation theory in the employment context.

Employers have a unique ability to marshal evidence

and find witnesses to defend employee lawsuits com-

plaining of a history of discrimination. Employers rou-

tinely document interactions with their employees. They

keep personnel files in which they record information

about ail aspects of their employees’ work lives. Many

employers, particularly large companies like Amtrak,

employ human resources specialists trained to analyze

and record personnel information. Employers are

required by law to preserve many employee records for

years. See, e.g., 29 C.F.R. § 516.5 [payroll records must be

kept three years]. Employers can also locate current and

past employees who can act as witnesses in any employ-

ment-related litigation.

The defendant's interest in finality and repose may

justify a narrow reading of the applicable statute of lim-

itations in a case involving a single wrongful act. By

definition, however, a continuing violation case involves

an ongoing pattern of discrimination and/or harassment.

An employer who has engaged in such misconduct

should not be allowed to rely on the policy favoring

finality and repose. The harm which such an employer

Cal.App.4th 1128 (1998), a sexual harassment case, the plaintiff

won $50,000 in compensatory damages and over $3.5 million in

punitive damages.

28

continues to inflict on its work

er offsets a i

those values. oe

Finally, staleness is not an issue in th

continuing violation cases. This Court so id tn feo

Realty Corp. v. Coleman, 455 U.S. 363 (1982), which

involved the Fair Housing Act of 1968, 42 1/.S.C. §§ 3601

et seq. The Housing Act's statute of limitations which

tracks the language of section 706(e) of Title VII, sequises

a civil action to be commenced within 180 days “after the

alleged discriminatory housing practice occurred.” 42

U.S.C. § 3612(a). Finding that five incidents of racial

steering (four of which were outside the limitations

period) constituted a continuing violation, the court held

the complaint was timely because it was filed within 180

days of the last occurrence. Although statutes of limita-

tions are intended to keep stale claims out of court, the

court observed, “Where the challenged violation is a con-

tinuing one, the staleness concern disappears.” Id. at 380

F. SINCE THIS COURT’S PREVIO

PRETATIONS OF SECTION 7060) DID NOT

INVOLVE THE CONTINUING VIOLATION

DOCTRINE, THEY ARE DISTINGUISHABLE

AND IRRELEVANT TO THIS CASE.

| The continuing violation doctrine, as

this case, involves a “serial violation” - a rah map er

illegal acts, one or more of which is within the limitations

period. Morgan v. National Railroad Passenger Corp., supra

232 F.3d at 1015. This Court’s prior decisions aeunin

section 706(e) did not address a serial violation. In =

previous cases, which are discussed below, there was

only one illegal act, which was time-barred. Conse-

quently, past decisions do not provide any guidance in

interpreting the continuing violation doctrine here.

29

In Delaware State College v. Ricks, 449 U.S. 250 (1980),

the Court held that an academic employee who claimed

his denial of tenure was discriminatory had to file an

EEOC charge within 180 days of the tenure decision, not

within 180 days of his discharge one year later. The only

discriminatory act was the denial of tenure, the court

observed. The termination was simply a delayed but

inevitable consequence of the tenure denial. As a result,

the continuing violation doctrine did not apply. Accord:

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

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

female flight attendant was terminated in 1968, pursuant

to a “no-marriage” rule applied only to women. She did

not file an EEOC charge. In 1972, the plaintiff was rehired

but the employer refused to credit her with lost seniority.

At that point, the plaintiff filed a charge. As in Ricks, the

court found there was no present violation of the statute.

The only discriminatory act was the plaintiff's termina-

tion four years earlier. The seniority system, which was

neutral in operation, merely gave present effect to a past

act of discrimination. Consequently, the continuing viola-

tion doctrine did not apply.

Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989),

involved a discriminatory seniority system which had

been in place for three years without challenge. When

female employees later experienced the effects of the

discriminatory system by being demoted, they filed

EEOC charges and sued. Relying on Ricks and Evans, the

Court held the plaintiffs’ charges were time-barred

because the only illegal act was the discriminatory adop-

tion of the seniority system, which had occurred outside

the limitations period. Again, the continuing violation

doctrine was inapplicable because the case involved only

one discriminatory act. Congress legislatively overruled

30

Lorance in the Civil Rights Act of 1991. 42 U.S.C.

§ 2000e-5(e)(2).

Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229

(1976), did not address the continuing violation doctrine.

Robbins & Myers held that the statutory period for filing

an EEOC charge was not tolled during the pendency of

grievance procedures under a collective bargaining agree-

ment.

Finally, Bazemore v. Friday, 478 U.S. 385 (1986), held

that a public entity which racially discriminated in sal-

aries before it was covered by Title VII could not perpetu-

ate the discrimination after Title VII applied to it. Section

706(e) was not involved. Bazemore has been interpreted to

mean that the continuing violation doctrine applies in a

disparate pay case and the charge-filing period runs from

the last discriminatory paycheck. See, e.g., Cardenas v.

Massey, 2001 U.S. App. LEXIS 22372 (Ad Cir. October 16,

2001); Anderson v. Zubieta, 180 F.3d 32%, 335-337 (D.C. Cir.

1999); Brinkley-Obu v. Hughes Trainin, Inc., 36 F.3d 336,

345-351 (4th Cir. 1994).

CONCLUSION

The judgment of the court of appeal should be

affirmed.

Respectfully submitted,

ELLEN LAKE

Counsel of Record

BRAD SELIGMAN

Jocetyn D. LARKIN

Attorneys for Amici Curiae

OCTOBER 2001