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One Harassing Act Within Limitations Period Opens Employer to Claims Going Back Years

    Client Alerts
  • February 08, 2013

In general, employees claiming discrimination or harassment must file an EEOC Charge within 180 days (or 300 days in some states), and any claims based on alleged conduct outside of that period is time-barred. In 2002, the Supreme Court created a limited exception to this rule for harassment claims when the latest incident is only the last in a series of actions. As long as the last act complained of falls within the limitations period, the employer is liable for the entire prior course of conduct.

Last month, the Third Circuit Court of Appeals expanded on this decision, concluding that those earlier incidents do not need to be a part of a continuous chain of events to fall within this liability window. Mandel v. M&Q Packaging Corp. involved allegations by a female employee that she had been subjected to a series of sexually harassing activities dating back to the beginning of her career. The district court dismissed the claim because the plaintiff could not prove that the harassment was "permanent," meaning that it was a constant feature of her years of employment.

The Third Circuit disagreed, reversing the decision and remanding the case for further proceedings. The court stated that the 2002 Supreme Court decision never made any mention of constancy or permanency as a requirement for a continuing series of harassing events. As long as all of the harassment falls under the same alleged illegal practices, the prior allegations are actionable, even if they occurred sporadically during the years of employment.

The Third Circuit did state that the sporadic nature of the harassment allegations could be evidence in determining whether the conduct was severe and pervasive enough to constitute a violation of Title VII. However, long breaks between individual harassing actions did not bar the plaintiff from including them in her allegations of a continuing course of harassing conduct.