When it comes to workplace harassment and creating a hostile work environment, proving a case can be challenging. This is especially true if the discriminatory acts occurred more than 300 days before filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). We’ve seen this issue arise in the context of the recent wave of harassment against the AAPI (Asian American and Pacific Islanders) community in 2020.
How to Establish a Harassment Claim
In order to bring a strong harassment or hostile work environment claim under Title VII of the 1964 Civil Rights Act, employees must demonstrate that the discriminatory acts were both severe and pervasive. These acts must also be based on a protected characteristic, such as gender, race, national origin, religion, or disability. It’s important to note that minor slights and general rudeness do not meet the threshold of an unlawful hostile work environment.
A hostile work environment claim differs from other types of discrimination claims, such as failure to promote or hire, because it involves a series of events rather than discrete acts that can be pinpointed to a specific date. While individual acts of harassment alone may not qualify as unlawful, their cumulative effect can contribute to a hostile work environment. This principle was established in the case of Nat’l R.R. Passenger Corp. v. Morgan, where the Supreme Court ruled that a hostile work environment claim consists of multiple acts that collectively constitute one “unlawful employment practice”.
Understanding the Continuing Violation Doctrine
To pursue an employment discrimination claim, including a harassment case, employees must file a charge of discrimination with the EEOC within 180 or 300 days of the unlawful employment practice, depending on the state in which they work. However, in the case of a hostile work environment, the question becomes: what constitutes the unlawful employment practice that triggers the need to file an EEOC charge? Since these claims usually involve a series of events rather than a discrete act, such as a pay cut, the continuing violation doctrine comes into play.
According to the continuing violation doctrine, if an employee files an EEOC charge while at least one act contributing to the hostile work environment is still within the filing deadline, the entire period of the hostile work environment can be considered when determining liability.
Let’s consider an example. In the case of Pesce v. Mendes & Mount LLP, a federal court denied a motion to dismiss the complaint and recognized that the alleged multi-year failure of the employer to ensure a work environment free from sexual harassment and assault may constitute a continuing violation of Title VII. In this particular case, an incident in March 2018, which fell within the 300-day filing period, allowed the employee to also reference incidents from 2015 and 2017 as additional evidence to support her claim.
The continuing violation doctrine, therefore, plays a crucial role in enabling employees to establish that they have experienced illegal harassment not only based on incidents that occurred within the prescribed timeframe, but also on conduct that took place years before filing the EEOC charge.
It’s worth noting that the interpretation of the continuing violation doctrine can vary among different regions in the country. For instance, the Eleventh Circuit, covering southeastern states, may approach the doctrine differently compared to the Second Circuit, covering northeastern states.
To summarize, here are the key points to remember:
- In order to pursue a hostile work environment or harassment claim, employees must file an EEOC charge of discrimination.
- If at least one act contributing to the hostile work environment occurred within the 180/300-day filing period, employees can also rely on older incidents to support their claim.
- The continuing violation doctrine does not apply to discrimination claims involving discrete acts, such as cases of failure to hire or termination.
- The application of the continuing violation doctrine can vary depending on the region of the country.
Understanding the nuances of the continuing violation doctrine is crucial for employees seeking to strengthen their workplace harassment cases. By recognizing the full impact of a series of discriminatory acts, individuals can effectively advocate for their rights and create lasting change in their work environments.