Title VII’s Continuing Violation Doctrine

In New York, before someone can file a Title VII discrimination/sexual harassment lawsuit in federal court, he or she must first file a charge (complaint) with the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged discriminatory act(s).  When analyzing a Title VII hostile work environment discrimination claim, courts will then usually only consider events that occurred within those 300 days.  However, courts can consider incidents that occurred outside the statute of limitations (300 days) as long as a sufficiently related act contributing to the hostile environment takes place within the statutory time period. 

“Under Title VII’s continuing violation doctrine, if a plaintiff has experienced a continuous practice and policy of discrimination . . . the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it.” Washington v. Cty. of Rockland, 373 F.3d 310, 317 (2d Cir. 2004) (internal quotation marks and citations omitted).  Conduct that has been characterized as a continuing violation is “composed of a series of separate acts that collectively constitute one unlawful employment practice.” AMTRAK v. Morgan, 536 U.S. 101, 111 (2002) (internal quotation marks omitted).

However, courts will not apply this doctrine when the discriminatory act or acts occurring inside the statute of limitations are not sufficiency related to the discriminatory acts occurring outside the limitations period.  For example, in McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010), the Second Circuit (federal appellate court covering New York) held that a single remark made within the 300-day statute of limitations was not sufficiently related to prior time-barred instances of sexual harassment to sustain a new claim for sexual harassment.

In that case, the plaintiff alleged that while employed in the production department of Cedar Graphics, she was regularly exposed to sexual comments and vulgar language by male co-workers and management.  The plaintiff complained about the sexual harassment and, at her request, was transferred to a position in the company’s estimating department, at which point, according to the plaintiff, the harassment ceased.  Nonetheless, sometime following her transfer, the plaintiff overheard a conversation between some of the company’s salesmen in which one referred to women as “chickies” and stated that one of his female friends was worth visiting only if he was going to have sex with her.

The plaintiff was ultimately terminated for unknown reasons and decided to file claims against the company for sexual harassment under New York law and Title VII.  The only incident that occurred within the limitations period was the “chickies” conversation, and the Second Circuit found that this alone was not severe or pervasive enough to constitute sexual harassment.

The Second Circuit also held that the “chickies” comments were not sufficiently related to the earlier conduct for numerous reasons, including that the employer transferred the plaintiff away from the department where she experienced harassment to a different department where she admitted she had no problem.  In addition, the court found that the “chickies” comments occurred more than a year after her transfer and were not even directed toward or about the plaintiff.  Lastly, the court found it relevant that the salesmen were neither a part of the earlier harassment nor members of either the estimating or production departments.

If you are being subjected to discrimination and/or sexual harassment at your place of employment, it is prudent to contact a New York employment discrimination attorney to better understand all your rights.