Challenge of Promotion Denial Wasn’t Time-Barred


By Michael A. Warner Jr. January 29, 2019

​Employees suing an employer for creating a hostile work environment can consider a discrete decision, such as a promotion denial that they claim to be discriminatory, as part of the hostile-environment claim, even if the decision occurred outside the statute of limitations, a federal district court ruled.

In 2016, the Equal Employment Opportunity Commission (EEOC) sued Jackson National Life Insurance Co. on behalf of nine former employees and other unidentified employees, claiming that these individuals were subject to discrimination, retaliation and hostile-work-environment harassment based on their race, sex, color and/or national origin. Seven of the employees represented by the EEOC attempted to intervene in the lawsuit by filing complaints on their own behalf and raising many of the same claims.

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

The seven employees claimed that over a course of several years, they were subjected to racist and/or sexist comments that created an unlawful hostile work environment. They also alleged that they were passed over for promotions, disciplined and given poor performance evaluations because of their race and/or sex. Some of the decisions the plaintiffs claimed were discriminatory occurred more than 300 days before a charge was filed with the EEOC, which meant their claims would be time-barred if they were suing just about those decisions alone.

Jackson National Life argued that the court could not consider any discrete employment decision, such as the denial of a promotion, that occurred more than 300 days before an EEOC charge was filed, which is the applicable statute of limitations.

The employees argued that the court could consider these discrete acts as part of their claim that the employer had maintained a hostile work environment.

The U.S. Supreme Court has applied different standards for determining whether a claim is barred by the statute of limitations, depending on whether the claim is based on a discriminatory employment decision or the creation of a hostile work environment. If the claim is based on a discrete decision, such as a termination or failure to promote, the action must have occurred within 300 days of the filing of a charge.

If, however, the claim is that the employer maintained an unlawful hostile environment, the claim is timely filed if one act that contributed to the hostile environment occurred within the statute of limitations. If there was one act that occurred within 300 days of filing, the employee can then rely on actions that occurred outside of the 300-day period to further support the claim. The Supreme Court has not provided guidance as to how to apply the statute of limitations when a case consists of a combination of discrete discriminatory acts and hostile-environment allegations. Courts in different jurisdictions have taken different approaches to this issue.

In this case, the court disagreed with Jackson National Life and held that although a claim for discrimination based on the discrete act might be untimely, the discrete act could still support the claims that the employees were subjected to a hostile work environment. In so doing, the court noted that courts in other jurisdictions had applied different standards, but it determined that this was the better approach.

EEOC v. Jackson National Life Insurance Co., N.D. Colo., No. 16-cv-02472 (Sept. 13, 2018).

Professional Pointer: When assessing whether an employee has a valid claim that he or she has been subjected to a hostile work environment, an employer must look at the totality of the conduct that the employee is complaining about, including any racist and/or sexist statements, as well as decisions that the employee may later claim are discriminatory.

Michael A. Warner Jr. is an attorney with Franczek, the Worklaw® Network member firm in Chicago. 


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