Can an employee present evidence of an alleged discriminatory or harassing incident that occurred more than 300 days before that employee filed a charge with the EEOC? Many would think that the answer is “no.”
Most HR professionals and employment attorneys are well aware that a charging party must file a charge with the EEOC or other agency within 180 days (or within 300 days if the alleged unlawful conduct occurred in a jurisdiction that has a local or state agency that handles fair employment practices charges) of the alleged unlawful occurrence. However, the passage of 300 days without a charge filed certainly does NOT mean that evidence of the alleged occurrence will not ultimately be presented to a jury. Let me explain . . . .
On July 21, 2005 the Equal Employment Opportunity Commission (?EEOC?) revised the portion of its Compliance Manual that addresses time limitations on filing employment discrimination charges.
Per the EEOC, it issued the revision to its Compliance Manual to reflect the holding of the U. S. Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). In that case the Supreme Court noted that a hostile work environment claim may be based on a series of separate acts which collectively constitute the hostile work environment for which recovery is sought. The Court found that as long as even one act contributing to the claim occurred within the filing period, all of the contributing acts during the entire period of the hostile environment can be considered for determining liability. Thus the EEOC Compliance Manual now provides that in a hostile work environment claim, the entire claim, including incidents that occurred outside the filing period, is actionable as long as at least one incident that is part of the claim occurred within the filing period.
?Oh,? you say, ?but at least the Supreme Court in National Railroad Passenger Corp. made it clear that discrete acts, such as termination, failure to promote, denial of transfer or refusal to hire are not actionable if time barred.? Do not be too quick to make that assumption. The EEOC creatively asserts in its Compliance Manual that even a discrete act may be argued to be part of a hostile work environment (and thus still actionable even if otherwise time-barred). In doing so, the EEOC cites to a 2003 decision by the D. C. Court of Appeals, and disagrees with a 2004 decision by the Ninth Circuit Court of Appeals. The EEOC does note that recovery for an untimely-asserted discrete act is limited to assessment of damages for the hostile work environment, and the charging party would not be entitled to specific relief, such as back pay or instatement, for the discrete act itself.
Both the Supreme Court in National Railroad Passenger Corp. v. Morgan, and the EEOC also point out that evidence of alleged discriminatory acts, for which no timely charge was filed, can also be admitted at trial and considered as background evidence in support of a timely claim. Of course, once a jury has seen evidence of acts for which no timely charge was filed, there is no guarantee that the jury will not, consciously or subconsciously, factor those acts into their damage award in some way.
Finally, the EEOC takes the position in its Compliance Manual that if a claim alleges a pattern or practice of discrimination, and at least one act that is a component of the pattern or practice of discrimination occurred within the statutory filing period, there is no time limitation at all, and damages can be awarded for all acts that occurred as part of the pattern or practice, without regard to how long ago they occurred.