Legal Memorandum: Continuing Violation Theory

Issue: Whether Discriminatory Wage Payments Constitute a Continuing Violation Theory in the Third Circuit Court of Appeals.

Area of Law: Constitutional Law, Employee Law
Keywords: Continuing violation theory; Discriminatory wage payments
Jurisdiction: Federal
Cited Cases: 180 F.3d 329; 475 F.2d 1041; 478 U.S. 385; 269 F.3d 251; 667 F.2d 1074; 653 F.2d 89; 977 F.2d 834
Cited Statutes: None
Date: 04/01/2006

Under a continuing violation theory, the clock does not begin running on the statute of limitations until the last act of discrimination occurs.   SEQ CHAPTER h r 1Courts have consistently found that a continuing violation exists “where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.”  See Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). 

In fact, the Third Circuit Court of Appeals has explicitly recognized and applied the continuing violation theory—an equitable exception to the timely filing requirement—allowing a plaintiff to “pursue a Title VII claim for discriminatory conduct that began prior to the filing period if he can demonstrate the act is part of an ongoing practice or pattern of discrimination.”  West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995) (citing Bronze Shields, Inc. v. New Jersey Dep’t of Civ. Serv., 667 F.2d 1074, 1081 (3d Cir.1981); Jewett v. Int’l Tel. & Tel. Corp., 653 F.2d 89, 91 (3d Cir. 1981)).  Indeed, the Court in West observed that “in Bronze Shields, 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 […]

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