Workplace harassment and hostile work environment claims—most typically sexual or racial harassment—can be hard to prove, and harder still if some of the more extreme discrimination occurred more than 300 days before a charge of discrimination is filed with the Equal Employment Opportunity Commission (EEOC). This is particularly true for the wave of harassment against the AAPI (Asian American and Pacific Islanders) community, including at work, that was exposed during 2020.

How Do You Prove A Harassment Claim?

In a typical harassment/hostile work environment claim under Title VII of the 1964 Civil Rights Act, an employee must show that the discriminatory acts were severe or pervasive. The acts must also be based the employee’s protected characteristic (for example, gender, race, national origin, religion, disability). Petty slights and generally rude behavior will not rise to the level of an unlawful hostile work environment.

A hostile work environment claim is different than other types of discrimination claims, such as failure to promote or hire, because the latter involve discrete acts that can be pinpointed to a particular date. Harassment claims, on the other hand, often involve a series of events that in the aggregate constitute a hostile work environment. Even if some of the specific acts standing alone may not be actionable as harassment, the cumulative effect of them can be. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).

What Is The Continuing Violation Doctrine?

To pursue an employment discrimination claim under Title VII, including a harassment case, an employee must file a charge of discrimination with the EEOC within either 180 or 300 days of the unlawful employment practice, depending on which state the employee works in.

The question in a hostile work environment scenario is, “what constitutes the unlawful employment practice?”that triggers the need to file an EEOC charge since the claim usually involves a series of events rather than a discrete act (such as a pay cut). In Morgan, the Supreme Court held that a “hostile work environment claim is comprised of a series of separate acts that collectively constitute one ‘unlawful employment practice.’” (citing Title VII, 42 U.S.C. § 2000e-5(e)(1)).

In sum, the continuing violation doctrine holds that if an employee files an EEOC charge while at least one act constituting the hostile work environment is still timely, then the whole time period of the hostile work environment can be considered for purposes of deciding liability.

One example of how the continuing violation doctrine can be applied is in Pesce v. Mendes & Mount LLP, where a federal court denied a motion to dismiss the complaint and found that the employer’s alleged multi-year failure to ensure that the employee could work “without fearing sexual harassment and assault” may be a continuing violation of Title VII. See Pesce, Case No. 19-cv-4922, 2020 WL 7028641, at *4 (S.D.N.Y. Nov. 30, 2020). Accordingly, an alleged incident in March 2018, which was timely because it occurred within 300 days of filing the EEOC charge, allowed the employee to also use other instances that she claims took place in 2015 and 2017 to support her claim. Id.

Thus, the continuing violation doctrine can be a major factor as it permits an employee to establish that they suffered illegal harassment based not only on incidents that occurred within 300 days of filing an EEOC charge, but also conduct that took place several years prior to submitting the EEOC charge.

As with many legal arguments related to employment discrimination claims, the way in which the continuing violation doctrine is interpreted by courts varies significantly depending on what part of the country you work in. To illustrate, the Federal Court of Appeals for the Eleventh Circuit (covering the southeastern states) may apply the doctrine significantly differently than the Second Circuit (covering the northeastern states).

Key takeaways

• To pursue a hostile work environment/harassment, the employee needs to file an EEOC charge of discrimination.

• If at least one act that is part of the hostile work environment occurred within 180/300 days of filing the EEOC charge, then the employee can also rely on older incidents (years prior to the EEOC charge being submitted) to establish their claim.

• The continuing violation doctrine does not apply to discrimination claims involving discrete acts, including a failure to hire or termination case.

• How courts interpret the applicability of the continuing violation doctrine depends on what part of the country you live in.