5th Circuit On Continuing Violations
by Michael Fox
Decisions related to the timeliness of a claim are most complicated when it involves hostile environment harassment, which almost always occurs over a period of time. Although the rule is fairly simple according to the US Supreme Court's decision in National R.R. Passenger Corp. v. Morgan, “so long as any act contributing to that hostile environment takes place within the statutory time period," it can get sticky in the application.
In Stewart v. Mississippi Transport Commission (5th Cir. 10/21/09) [pdf] the Court dealt with such a claim. The plaintiff had been harassed by her supervisor. After an investigation they had been separated, but 16 months later when her new boss retired, the old boss replaces him. He begins offensive conduct again. When she complains they are again separated. The question for the Court was whether or not the sexual harassment claim should include the events before the first separation. Ultimately, two members of the Court held that they should not be.
In reaching that conclusion, they referred to 3 limitations on the continuing violation rule also found in Morgan:
- the plaintiff must demonstrate that the “separate acts” are related, or else there is
no single violation that encompasses the earlier acts;
- the violation must be continuing; intervening action by the employer, among
other things, will sever the acts that preceded it from those subsequent to it,
precluding liability for preceding acts outside the filing window; or
- the continuing violation doctrine is tempered by the court’s equitable
powers, which must be exercised to “honor Title VII's remedial purpose ‘without
negating the particular purpose of the filing requirement.
Here, it was the second exception that was fatal to plaintiff's claim -- the Court considered the employer intervention of separating the two, which did cause the earlier harassment to stop, an intervening action. When it viewed the events of the last incident of harassment (absent the circumstances of the first harassment), the majority found that they were not sufficiently severe or pervasive.
Interestingly, the newest member of the 5th Circuit, and the last Bush appointment, Judge Haynes dissented on this point from Chief Judge Edith Jones' opinion.