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The Third Circuit’s Take on the “Continuing Violation Theory” for Title VII Claims in Pennsylvania

June 6, 2017
Deniz Uzel
Posted in: Labor & Employment

A current or former employee has sued you alleging a Title VII claim for incidents that occurred months, if not years, prior alleging a “continuing violation theory” prevents their time bar – what’s an employer do?

In Pennsylvania, in order to bring suit under Title VII, a plaintiff must have exhausted his/her administrative remedies by filing a timely charge of discrimination (within 300 days of the alleged unlawful practice) with the EEOC. Employees often attempt to allege violations which occurred beyond the 300-day time limit alleging a “continuing violation theory” which allows for acts that are not individually actionable to be aggregated to make out a hostile work environment claim alleging such acts “… are linked in a pattern of actions which continues into the applicable limitations period.” O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002)). To support a continuing violation theory, an employee must show that all acts which constitute the claim are part of the same unlawful employment practice and that at least one act falls within the applicable limitations period.

The U.S. District Court for the Eastern District of Pennsylvania and the U.S. Court of Appeals for the Third Circuit have assessed this theory and its applicability.  In West v. Philadelphia Electric Company, the Third Circuit adopted the Fifth Circuit’s approach in Berry v. Board of Supervisors of Louisiana State University for ascertaining the existence of a continuing violation. 45 F.3d 744, 755 (3d Cir. 1995) (citing 715 F.2d 971, 981 (5th Cir. 1983)). This inquiry assesses the following factors: “(i) subject matter-whether the violations constitute the same type of discrimination; (ii) frequency; and (iii) permanence.” See West, 45 F.3d at 755, n.9.  Since West, however, the permanency requirement has been eliminated by the United States Supreme Court. See Morgan, 536 U.S. at 117-18. In 2013, the Third Circuit, in Mandel v. M&Q Packaging Corporation, has “clarified” the application of the continuing violation doctrine, as defined by the United States Supreme Court. 706 F.3d 157, 166-67 (3d Cir. 2013) (“It is clear that there is no longer a permanency requirement under the continuing violation doctrine . . . .”) Accordingly, the relevant analysis focuses on two factors: subject matter and frequency.

Accordingly, if an employee has an appropriately exhausted claim for race discrimination within the applicable limitations period, prior time-barred assertions of gender discrimination which occurred outside of the applicable limitations period cannot be said to be a part of the continuing violation because the discrimination is not within the same “subject matter.” A claim for gender discrimination in that scenario would be time-barred.  However, frequent acts which are outside of the limitations period that also relate to race discrimination which would have otherwise been time-barred could potentially be considered a part of the continuing violation.

Employers and defense counsel representing employers must understand the timing, frequency, and subject matter of the acts alleged to constitute the continuing violation, to appropriately preserve and assert a time-bar defense when the continuing violation theory is improperly asserted.