Can My Employment Discrimination Lawsuit Proceed Under the Continuing Violation Doctrine?
Mar 21, 2022 | Written by: | Share
The statute of limitations for claims arising under the New Jersey Law Against Discrimination (LAD) is two years. However, a judicially created doctrine, known as the Continuing Violation Doctrine, provides an exception to that limitations period. Under the Continuing Violation Doctrine, “a plaintiff can sue for actions that occurred outside the applicable limitations period if a defendant’s conduct is part of a continuing practice [and] . . . the last act evidencing the practice falls within the limitations period.” Cibula v. Fox, 570 F. App’x 129, 135 (3rd Cir. 2014).
In Wilson v. Wal-Mart Stores, the Supreme Court of New Jersey recognized the Continuing Violation Doctrine in an LAD case. 158 N.J. 263 (1999). In Wilson, the Court observed that "a significant number of courts recognize that the cumulative effect of a series of discriminatory or harassing events represents a single cause of action[.]" Id. at 273. The Court stated that as a general rule, "[w]hen an individual is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases." Id. at 272.
Importantly, in analyzing the statute of limitations issue, the courts have differentiated between discrete acts and continuing violations. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the United States Supreme Court noted that some discrete acts, such as termination, failure to promote, denial of transfer, or refusal to hire are “easy to identify” and “[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice”. Id. at 114. Accordingly, for the statute of limitations purpose, a “discrete retaliatory or discriminatory act occur[s] on the day that it happen[s]”. Id. at 110. To the contrary, the Court defined a continuing violation as “a series of separate acts that collectively constitute one ‘unlawful employment practice’ that cannot be said to occur on any particular day. Id. at 115,117. Such a cause of action accrues on the date on which the last component act occurred. Ibid.
In Roa v. Roa, 200 N.J. 555 (2010), the New Jersey Supreme Court addressed the type of retaliatory conduct that is considered discrete and, therefore, not entitled to application of the Continuing Violation Doctrine. The New Jersey Supreme Court followed the holding in Morgan and stated that “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the [statutorily prescribed] time period after the discrete discriminatory act occurred”. Id. at 567. The Roa Court stated that the Continuing Violation Doctrine applied to “a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment.” In such cases, the “cause of action would have accrued on the date on which the last act occurred, nothwithstanding ‘that some of the component acts of the hostile work environment [have fallen] outside the statutory period”. Id. at 568, quoting Shepherd v. Hunterdon Developmental Center, 174 N.J. 1, 21 (2002).
In Roa, the plaintiffs, Fernando and Liliana, husband and wife, were employed by the defendant company. Fernando’s brother, Marino, was the company’s vice president and the plaintiffs’ supervisor. The plaintiffs alleged that Marino began to harass them after Fernando told Marino’s wife that Marino was having an affair with a female employee. Further, Fernando also complained to the company’s owner that Marino was sexually harassing two female employees. The owner failed to take any action, and Marino’s harassment of the plaintiffs continued and intensified. Eventually, Liliana was terminated, followed by Fernando about a month later. Thereafter, Liliana underwent surgery and incurred roughly $6,000 in medical bills, which the company refused to pay since it had cancelled the plaintiffs’ insurance coverage before Lilian’s surgery, even though Fernando was still employed at that time.
The Court concluded that because the plaintiffs’ claims that their employer’s retaliatory discharge and retaliatory premature cancellation of insurance coverage were “discrete acts,” the Continuing Violation Doctrine did not apply to them. The Court noted that the Continuing Violation Doctrine couldn’t be applied to “sweep in” an otherwise time-barred discrete act. Id. at 569. The Court explained that the Continuing Violation Doctrine was developed to allow for the aggregation of acts, each of which, by themselves, might not have alerted the employee of the existence of a claim, but which together, show a pattern of discrimination. In situations like this, the last act is said to “sweep in” the otherwise untimely prior non-discrete acts. Ibid. Therefore, the plaintiffs’ retaliatory discharge claims in Roa were barred by the LAD’s statute of limitations. (The retaliatory cancellation of insurance coverage claim was permitted to proceed, however, via application of the discovery rule).
In contrast, in Adel Mansour v. Brooklake Club Corporation, Inc., d/b/a Brooklake Country Club, A-2472-17T1 (App. Div. July 10, 2019) the Court considered a hostile work environment claim made by an Egyptian and Muslim cook who was allegedly subjected to a continuous pattern of derogatory remarks based on his religious and ethnic heritage. Most of the alleged inappropriate statements and events occurred between 2003 and 2012. Then there was a break for a year, and there was one isolated incident that occurred in 2014. After that, nothing was alleged to have occurred between March of 2014 and November of 2015. The plaintiff filed his complaint in November of 2015.
The Appellate Division reversed the trial judge’s grant of summary judgment, relying primarily on the Continuing Violation Doctrine, noting, “when the complained-of conduct constitutes ‘a series of separate acts that collectively constitute one unlawful employment practice[,]’ the entire claim may be timely if filed within two years of ‘the date the last component act occurred.’” Therefore, the hostile work environment claim was held to be timely filed under the LAD based on the Continuing Violation Doctrine, since the last act of harassment occurred in 2014.
If you have suffered a long course of prohibited harassment, the Continuing Violation Doctrine may save an otherwise untimely lawsuit. However, our courts have also made it clear that if there is a discrete, obvious event, such as termination, demotion, or failure to promote, you should not wait more than two years to file your suit. Should you have any questions as to the applicability of this doctrine to your potential lawsuit, please contact Gebhardt & Kiefer to speak with an attorney who has employment law experience.
Sharon M. Flynn, Esq. is a partner with Gebhardt & Kiefer, PC, and practices primarily in the areas of general litigation, employment law, and insurance defense.
If you have a suggestion for a future blog topic, please feel free to submit it via the Contact Us form.
Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.