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Legal Memorandum: Continuing Violation Theory

Issue: When does a ‘continuing violation’ allow a plaintiff to pursue a discrimination claim?

Area of Law: Employee Law
Keywords: Continuing violation theory; Discrimination claim
Jurisdiction: Federal
Cited Cases: 455 U.S. 385
Cited Statutes: 42 U.S.C. § 2000e-5(e)
Date: 06/01/2007

Although 42 U.S.C. § 2000e-5(e) provides that a charge of employment discrimination must be filed within 300 days after the alleged unlawful employment practice occurred, the Supreme Court recognizes that this “is a requirement that, like a statute of limitation, is subject to waiver, estoppel and equitable tolling.”  Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). 

Courts also recognize that one of the equitable exceptions to the ordinary timely filing requirement is the “continuing violation theory.”  West v. Philadelphia Elec. Co., 45 F. 3d 744, 754 (3d Cir. 1995).

Under this theory, the plaintiff may pursue a Title VII claim for discriminatory conduct that began prior to the filing period if he can demonstrate that the act is part of an ongoing practice or pattern of discrimination of the defendant.  In fact, in Bronze Shields, [Inc. v. New Jersey Dept. of Civ. Serv., 667 F.2d 1074, 1081 (3d Cir. 1981)], we cited with approval a Senate Conference Committee report recognizing that “certain types of violations are continuing in nature” , making it appropriate to “measure [ ] the running time of the required time period from the last occurrence of the discrimination and not from the first occurrence.”

 

Id. at 754 (citations omitted).

Just last month, the Supreme Court re-affirmed the continuing vitality of the type of continuing violation exception applicable here.  See Ledbetter v. Goodyear Tire & Rubber Co., __ S. Ct. __, No. 05-5618 (May […]

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