An early Supreme Court decision on the requirement for a timely charge be filed is United Airlines, Inc. v. Evans.^[3]  Due to a rule prohibiting married women from working as flight attendants the plaintiff was  forced to resign from her flight attendant position when she married in 1968.  This rule did not apply to males.  Miss Evans did not file a charge with the EEOC at that time. She resumed working as a flight attendant in 1972 at which time Ms. Evans was not given credit for her prior service.  In her suit, based on a charge filed after her return to work, Ms. Evans claimed discriminatory denial of seniority.  She contended that the airline’s action gave present effect to a past discriminatory act.  In denying Ms. Evans claim the Court held that:

...United was entitled 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.^[4]        

The Supreme Court has consistently rejected claims based on the continuing effects of single acts of discrimination which have not been the subject of a timely filed administrative charge.  In Delaware State College v. Ricks^[5] the court declined to consider the claim of a college professor who was denied tenure.  He filed his charge more than the applicable time limit of 180 days after he was notified of the denial of tenure.  Consistent with college policy Mr. Ricks was permitted to work for one year after the year in which he was  notified of the tenure decision.  The Court held that the time for filing the charge began to run when he was informed that tenure was denied, not when his employment ended.  The Court commented that “..., the only alleged discrimination occurred – and the filing limitations periods therefore commenced – at the time the tenure decision was made.  That is so even though one of the effects of the denial of tenure – the eventual loss of a teaching position – did not occur until later.”^[6] (internal footnote omitted).

The Court reasoned similarly in Lorance v. AT & T Technologies, Inc.^[7] where a company’s seniority system was changed to provide that an employee moving to a position as a “tester” lost her plant wide seniority for competitive purposes until she was on the new job for five years.  In the interim the individual’s seniority within the department was counted from the date of the new assignment.  The plaintiffs, long service employees, bid into the more skilled, higher paying tester position after the change.  In a subsequent reduction in force they were laid off due to their low seniority in the new position.  They claimed that the change in the seniority system was adopted to discriminate against women who moved into the more remunerative job which was traditionally held by males.  Their administrative charges, which were filed when they were laid off  some three years after the change in the seniority system, were found to be untimely.  The Court held that the charges should have been filed within the filing period subsequent to the change in the seniority system.  Following its reasoning in United Air Lines v. Evans and Delaware State College v. Ricks, the Court declined to treat the maintenance of the seniority system as a continuing violation.^[8]   The Court held that the time limitation for filing a charge runs from the time an intentionally discriminatory seniority system is adopted rather from when its effects are felt.^[9] 

The Supreme Court did, however, find a continuing violation  in Bazemore v. Friday^[10] which involved historic discriminatory discrepancies in the pay of black and white state Agricultural Extension Service workers.  The disparities predated the 1972 amendments that brought these state workers within the coverage of Title VII.  Determining that the plaintiffs were not time barred from asserting the right to comparable pay the Court stated that “Each week’s paycheck that delivers less to a black man than to a similarly situated white is a wrong actionable under Title VII, regardless that this pattern was begun prior to the effective date of Title VII.”^[11] 

In Beavers v. American Cast Iron Pipe Co.^[12] the Eleventh Circuit followed Bazemore.  The plaintiffs in Beavers challenged their employer’s health insurance plan which denied dental and medical coverage to employees’ children if the children were not living with the parent/employee.   They claimed that the plan disparately impacted male employees in violation of Title VII as wives are more likely to have custody of children after a divorce.  Referring to Delaware State College v. Ricks and Bazemore v. Friday, the panel observed that “...the Supreme Court recognizes the distinction this court has drawn between the present effects of a one time violation – as in Ricks – and the continuation of the violation into the present – as in  Bazemore.”^[13] 

The Beavers court rejected the employer’s contention that the action was untimely as no administrative charge had been filed with the EEOC within 180 days of the institution of the health plan.  It found a continuing violation in that “...each week in which divorced men are denied insurance coverage for their nonresident children while similarly situated divorced women, who apparently are far more likely to have custody of their children, receive such coverage constitutes a wrong arguably actionable under Title VII.”^[14]  Notably the court ruled that Mr. Beavers’ EEOC charge “... was timely as to any application of [the employer’s] allegedly discriminatory insurance benefits policy within the preceding 180 days.”^[15]  The ruling did not revive claims for anything occurring more than 180 days before the filing of the charge.   

II.  ENFORCEMENT OF CLAIMS BASED ON CHARGES FILED BEYOND THE FILING PERIOD

A.  Equitable Estoppel

Various doctrines have been advanced to allow a judicial action to proceed in the face of a charge that has been filed more than the applicable number of days after some or all of the allegedly discriminatory conduct that is the subject of the action.  In Zipes v. Transworld Airlines^[16] the Supreme Court allowed a case based on an untimely charge to proceed in a decision that laid the foundation for equitable considerations to be taken into account.  The Court ruled for the plaintiff because the employer did not properly raise the defense of untimeliness.  The Court held that the failure to file a charge was not a jurisdictional defect that barred an action from proceeding and that could be raised at any time.  The Court ruled that ...“ filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to filing a suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver estoppel and equitable tolling.” (footnote in the original omitted).^[17]

Even before Zipes the Fifth Circuit held in Reeb v. Economic Opportunity Atlanta, Inc.^[18]       that the time limit for filing an EEOC charge was analogous to a statute of limitations that is susceptible of being waived rather than a jurisdictional prerequisite to a suit.  In that case the plaintiff was told that her position was abolished due to a lack of funding.  Several months later Ms. Reeb learned that a male had been hired for the position shortly after her dismissal.  She promptly filed a charge with the EEOC.  The court held that “Equitable modifications, such as tolling and estoppel that are applied to [statutes of limitations] should also be applied...” to the present case.^[19]  The court ruled that the filing period does not begin to run “...until the facts that would support a charge of discrimination under Title VII [are] apparent or should have been apparent to a person with reasonably prudent regard for his rights similarly situated to the plaintiff.”^[20]    

The Eleventh Circuit found the doctrine of “equitable tolling” inapplicable to an untimely EEOC charge in Ross v. Buckeye Cellulose Corporation.^[21]  The plaintiffs challenged a pay evaluation system (the “P & P System”) as allegedly having a negative disparate impact on black employees.  The plaintiffs filed their EEOC charges more than the applicable 180 days after all employees’ wages were frozen and the P & P System was no longer in effect.  The court declined to apply equitable tolling, finding that the plaintiffs failed to meet their burden of proof that there was an equitable basis to waive the limitation.  The court pointed out that “The trial transcript is devoid of evidence that appellants actually were – or that similarly-situated people with a reasonably prudent regard for their rights would be – unaware that they were victims of unlawful discrimination in the period more than 180 days prior to filing their complaints with the EEOC.”^[22]  The Eleventh Circuit reasoned similarly in Carter v. West Publishing Co.^[23] where the plaintiffs challenged the employers practice of favoring male employees over female employees in allowing the purchase of company stock.  The court found that equitable estoppel did not apply to justify allowing the action to proceed where the charge was filed long after the program was discontinued.  Although the employer sought to keep its stock purchase plan secret the plaintiff testified that she and other women knew of the plan.^[24]

B.  Continuing Violations

The decision in Ross, supra, also declined to find the existence of a continuing violation.  The challenged evaluation system had been discontinued more than 180 days before the filing of the EEOC charge.  Therefore there was no discriminatory act within the filing period on which to base a continuing violation.  The harm to plaintiff was found to be a present consequence of an earlier allegedly discriminatory act rather than the result of a continuing violation.^[25]  Similarly, in Carter, supra, the complained of sale of the employer’s stock had been discontinued outside the filing period.  The court found that the continued payment of dividends on that stock into the filing period did not make the sale a continuing violation.^[26]  It merely gave present effect to a past alleged violation. 

In Gonzalez v. Firestone Tire & Rubber Co.^[27] the use of an  unvalidated test to determining eligibility for transfer or promotion was challenged as discriminating against Spanish-surnamed  employees.  The Fifth Circuit held that on remand the district court should find a continuing violation only if the test was used within 180 days prior to the filing of the plaintiff’s administrative charge.  The court further ruled that even if a continuing violation was found the plaintiff did not have standing to contest any failure to promote that took place more than180 days prior to the filing of his charge.^[28]  

In the recent decision in  National Railroad Passenger Corporation v. Morgan^[29] (the “Amtrak” case) the Supreme Court continued to hold that to be timely a charge must be filed with the EEOC within 180/300 days of a discrete retaliatory or discriminatory act.^[30]  The plaintiff averred that he had been subject to ongoing racial harassment as well as to  discrete discriminatory acts such as disparate discipline during the entire course of his employment.  The court held that:

...discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.  Each discrete discriminatory act starts a new clock for filing charges alleging that act.  The charge, therefore, must be filed within the 180- or 300- day time period after the discrete discriminatory act occurred.  The existence of past acts and the employee’s prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed.  Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.^[31]

The Court rejected the Ninth Circuit’s view in the decision below that “serial violations” constitute a continuing violation.^[32]  It held that “...discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify.  Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’”^[33]   Each triggers the running of the time for filing a charge.  The Court distinguished hostile environment claims from discrete acts.^[34]  The Court reasoned that where there is a hostile environment “The ‘unlawful employment practice’ ...cannot be said to occur on any particular day.  It occurs over a series of days or perhaps years, and in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.”^[35]  The Court stated that:

A hostile work environment claim is comprised of a series of separate acts that collectively constitute one ‘unlawful employment practice.’ 42 U.S.C. 2000e-5(e)(1). The timely filing provision requires only that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened.  It does not matter for the purposes of the statute that some of the component acts of the hostile work environment fall outside the statutory time period.  Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purpose of determining liability. (footnote omitted).^[36]

In finding that a hostile environment is a single discriminatory act the Court pointed out that such a claim is based on the entirety of the surrounding circumstances including the severity and pervasiveness of the conduct and whether it is humiliating or threatening.^[37]  The Court hypothesized a situation where acts contributing to a hostile environment occur during days 1 to 100 and the employee files a charge on day 401.  The charge is untimely if no act comprising part of the hostile environment takes place within 300 days of the filing (i.e. on day 100 or thereafter).  However if an act that is part of the same scenario is committed on day 401 the charge is timely as to the earlier acts even if nothing occurred from day 101 to day 400.^[38]  The Court concluded that:

A title VII plaintiff raising claims of discrete discriminatory acts must file within the appropriate time period -- 180 or 300 days-- set forth in 42 U.S.C. § 2000e-5(e)(1).  A charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the [applicable] time period.  Neither holding, however, precludes a court from applying equitable doctrines that may toll or limit the time period.

While the Amtrak decision facially expands opportunities for plaintiffs to raise long past incidents as part of a hostile environment claim by invoking the continuing violation doctrine there are still limits.  All acts must be “...part of the same unlawful employment practice.”  The acts must have sufficient relationship with each other to be part of the same claim.  Presumably among the ties would be the identities of the actors or the knowledge of management.  Additionally equitable considerations such as laches may be a defense where an inordinate delay unduly prejudices the defense.

The expanded possibility of having to defend allegations of long past acts must be added to the reasons for employers to maintain a firm and well disseminated policy of prohibiting conduct that would contribute to a hostile work environment.  Add to these a prompt and effective response to employees’ complaints. 

C.  Relation Back          

 When the timeliness of an administrative charge is questioned there may be a dispute as to the date on which the charge has been effectively filed.  The concept of “relation back” may save a charge or some of its allegations from being found to be untimely.  The relation back regulation of the EEOC, 29 CFR § 1601.12(b), allows a charge to “...be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify or amplify allegations made therein.”  Amendments, including those with additional allegations of unlawful employment practices “...related to or growing out of the subject matter of the original charge will relate back to the date that the charge was first received.” 

In Edelman v. Lynchburg College^[39] the Supreme Court recently found this regulation to be “... an unassailable interpretation of § 706.”^[40]   Edelman had faxed a letter to the EEOC within the applicable filing period complaining that he was denied tenure by the college on the basis of his gender, national origin and religion.  The letter was not under oath or affirmation as required by the statute.^[41] Edelman submitted a verified charge form 313 days after the denial of tenure of which he complained in the fax.  The Court held that the verified form could relate back to the faxed letter.  The letter met the requirements of a charge and thereby stopped the clock from running.  It found that a charge does not have to be verified when filed.  If it is verified after the filing time has run that verification can “relate back” to the original filing, at least where the charging party and the EEOC regard the initial contact as a charge.^[42]

Relation back was allowed to amplify a charge in Sanchez v. Standard Brands where the Fifth Circuit held that the scope of a judicial action under Title VII   “... is limited to the ‘scope’ of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” ^[43] (internal citation omitted)  The action “...may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission.”^[44]  The plaintiff had filed a timely charge on the EEOC form on which she checked off the check block indicating discrimination on the basis of sex.  After the time for filing she amended the charge to include national origin discrimination.  The court ruled that the amendment was timely having related back to the original filing. 

III.  CONCLUSION

Plaintiff’s counsel can be certain that defense counsel will  examine charges and judicial complaints as soon as they are received to determine if the charges are timely.  Defense counsel must be aware that not every charge that is facially untimely will bar the charging party from recovering.  Both must be aware of those situations in which a continuing discriminatory policy will revive claims for what occurred more than 180/300 days before the charge was filed.  However even where an employer continues to maintain a discriminatory policy a charge filed after the applicable limitation period will not allow recovery for discrete acts about which the claimant knew or should have known. 

6/30/2002