U.S. Supreme Court Gives Something to Both Employers and Employees in "National Railroad Passenger Corp. v. Morgan"
September, 2002
Background
Abner J. Morgan, Jr., who is black, filed a charge of discrimination and retaliation against Amtrak with the EEOC. Morgan alleged that he was discriminated against from the first day he was hired by Amtrak. Morgan had been hired as an electrician’s helper, rather than an electrician. He further alleged that he was consistently harassed and disciplined more harshly than other employees because of his race. Morgan alleged that Amtrak refused to allow him to participate in an apprenticeship program, gave him numerous written counselings for absenteeism and subjected him to racial epithets. Ultimately, he was terminated for refusing to follow orders. All of these events occurred more than 300 days before February of 1995 when Morgan finally filed a discrimination charge. At the time he filed, Morgan was on a disciplinary suspension. A few days after he filed, Morgan was terminated. On July 3, 1996, Morgan received a right-to-sue letter and on October 2, 1996 he filed a federal lawsuit. The federal district court dismissed Morgan’s lawsuit because of the conduct which took place outside the permissible 300 day filing period under the Civil Rights Act, but the Ninth Circuit Court of Appeals reversed. The United States Supreme Court granted review.
The Court’s Ruling
Good News For Employers
In non-harassment claims, the Supreme Court held that the continuing violation theory cannot be used to hook in discreet discriminatory acts outside the 300-day filing period limitation. This means that an employee alleging either a failure to hire, promote, provide terms and conditions of employment or termination which occurred more than 300 days from the date of filing a charge of discrimination would be unsuccessful on those late claims. Thus, the Court now has sounded the death knell on lower federal court decisions to the contrary.
On The Other Side, The Employees
For harassment claims, the continuing violation theory is alive and well. (Remember that a continuing violation theory can apply to all forms of harassment whether racial, sexual, religious or other forms.)
Supreme Court Gives Hypotheticals
Here are two hostile work environment hypothetical scenarios which the Supreme Court used.
How do you think the Court should have ruled?
Hypothetical 1: Company engages in a hostile work environment in days 1-100. There is no further harassment until the 401st day. Can the 401st day pull in days 1-100 for purposes of liability?
Hypothetical 2: The company creates a hostile work environment in days 1-400, employee files a charge on the 401st day. Can the employee recover for the hostile acts that occurred in the first 100 days?
Answer Is... . Employer was liable in both hypotheticals!
Safe Harbor?
Perhaps a safe harbor for employers exists in the Court’s observation that intervening factors may disrupt causation. Take this to mean that corrective action by the employer is crucial.
Any Hope?
In harassment cases, some consolation exists for employers. The Court said that traditional, equitable defenses may be raised such as estoppel, waiver, and laches. But the Court cautioned that these defenses are to be permitted only sparingly. As a practical matter, equitable defenses in some circumstances are difficult for an employer to prove. Laches, for example, requires a showing of prejudice to the party asserting the defense.
Learning Points:
A Word To Management (Harassment Cases)
Supervisors and management should be alerted to this decision. Re-emphasize immediate corrective action that may set up the defenses established a few years ago in the Ellerth and Faragher decisions.
Where Will This Decision Lead?
“Mere Presence of Harasser”
The New Jersey Supreme Court has applied National Railroad in a recent decision, holding that the “mere presence” of a prior harasser who remained employed may hook-in sexual harassment conduct that occurred outside the 300-day rule. Caggiano v. Fontoura, 2002 N.J. Super. LEXIS 367.
Note: We will periodically update you via the internet on other important employment issues. Send your e-mail address to jbarber@clausen.com for updates on other important court decisions.
1. 122 S. Ct. 2061 (2002)
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