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Failure to Advise Employee of Customer Visit Opportunities Can Be Continuing Violation under Title VII

    Client Alerts
  • October 24, 2008

In last year’s much-criticized Ledbetter decision, the U.S. Supreme Court concluded that current pay disparities based on old instances of sex discrimination were time-barred.  The Court held that the time period for suing under Title VII was based on the discriminatory action and not each subsequent paycheck that reflects the effects of that former decision.

In Chaudhry v. Nucor Steel-Indiana, the Seventh Circuit Court of Appeals appears to evade Ledbetter’s reasoning by finding a continuing violation in a similar pay dispute.  In this case, the plaintiff alleged that he was denied a pay increase in 2003 due to his race, national origin and religion.  He did not file his EEOC charge until 2006.  The district court dismissed the pay disparity claim, following Ledbetter’s reasoning.

On appeal, the Seventh Circuit partially reversed the district court.  It held that the plaintiff’s claims of continuing discrimination were not time-barred because he alleged that each year, his employer failed to allow him to make a certain number of customer visits.  He claimed that these visits were crucial toward his salary determination.  While the plaintiff’s challenge of the original 2003 decision was clearly untimely, his claims regarding customer visits state a claim under Title VII, because they allegedly reoccurred each year.

If followed by other courts, this decision appears to provide plaintiffs with a strategy to make an "end run" around Ledbetter.  By alleging some continuing discriminatory practice, the plaintiff may avoid the statute of limitations following a previous salary decision.