Race-Bias Claim Can Proceed Under Continuing Violation Theory

By Samantha J. Wood October 4, 2018
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An employee can bring a discrimination complaint based on allegations that happened outside of the limitations period if those claims illustrate an employer's long-standing practice of tolerating racial hostility, the U.S. District Court for the Middle District of Tennessee held.

Generally, before a plaintiff can bring a discrimination complaint in federal court, he or she must file a charge with the U.S. Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged unlawful employment action. The 180-day filing deadline is extended to 300 days if a state or local agency enforces a similar anti-discrimination law. These filing deadlines apply to each discrete employment action.

Under the continuing violation doctrine, however, a plaintiff may bring a claim for discriminatory conduct that occurred outside of the 180- or 300-day limitations period if the discriminatory conduct sufficiently relates to actions that occurred within the limitations period. For example, a plaintiff may establish a continuing violation by showing an ongoing series of discriminatory acts contributing to a hostile work environment or a long-standing policy or practice of discrimination.

Over the course of three years, the plaintiff in this case complained that her supervisor made ongoing offensive racial comments. In late 2014 and early 2015, the employer investigated the plaintiff's complaints and suspended the supervisor. However, after she returned from suspension, the supervisor allegedly continued to make offensive comments on a weekly basis. A manager overheard the comments and said they were inappropriate, but the employer didn't take any further action. The plaintiff filed an EEOC complaint on April 28, 2016, and a federal circuit court complaint on May 4, 2017.

The employer tried to get the complaint dismissed because it wasn't filed on time, but the court refused. A plaintiff can establish a claim of discrimination by showing that the defendant has a long-standing demonstrable policy of tolerating a racially hostile environment and the incidents of harassment in this case illustrate a continuing course of conduct, the court said. The evidence showed that the supervisor had a pattern of making inappropriate racial remarks.

[SHRM members-only toolkit: Managing Equal Employment Opportunity] 

Although the supervisor was suspended, the employer knew that the conduct continued, the court said. Because the employer failed to take additional action to end the ongoing harassment, the court held that the plaintiff could establish a continuing violation.

Dawson v. State of Tennessee, Dep.'t of Corr., M.D. Tenn., No. 3:17-cv-00800 (July 12, 2018).

Professional Pointer: Employers should keep in mind that simply taking action under their harassment or anti-discrimination policies will not necessarily shield them from liability under the continuing violation doctrine. Employers should follow up to ensure that the action taken ended the harassment or discrimination. Employers should also follow up to ensure that workers who complain of harassment are not retaliated against for doing so.

Samantha J. Wood is an attorney with Lindner & Marsack S.C., the Worklaw® Network member firm in Milwaukee, Wis.

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