January 1, 1900

by Suzanne M. Marasco

In 1993, the Supreme Court established a two year statute of limitations for claims arising under the New Jersey Law Against Discrimination. See Montells v. Haynes. Traditionally, this would mean that a claim for harassment or discrimination must be filed by the aggrieved party within two years of the occurrence or incident giving rise to such claim. Yet, interestingly, employers often find themselves facing multiple claims of discrimination or harassment which extend back for years beyond the applicable two year statute of limitations. To the employers’ surprise and obvious dismay, the employers’ attempt to dismiss the aggrieved employee’s claim for failure to file such claim within the statute of limitations is often denied.

The "Continuing Violation Doctrine"

Naturally, being forced to contend with and defend claims that go back well beyond the two year statute of limitations can be unsettling for any employer. An employer may erroneously assume that it can rest easy with each passing year after one of its problem employees engages in prohibitive conduct if no claim is made. Unfortunately, such is not the case, and employers must be keenly aware of unlawful work place conduct-the longer it occurs, the greater the liability the employer may eventually be subjected to.

Indeed, in New Jersey, the statute of limitations does not begin to toll until the final act of harassment if there is a "continuing violation" stemming from the same basic operative facts. Stated differently, the "continuing violation doctrine" allows a plaintiff employee to pursue a discrimination claim for "conduct which began prior to or beyond the statute of limitations period if such plaintiff can demonstrate that the act is part of an ongoing practice of discrimination of the defendant." Horovath v. Rimtech. For discriminatory conduct to fit within the continuing violation doctrine, it must be intentional, pervasive and regular and consist of more than the occurrence of isolated or sporadic acts. Additionally, at least one act of harassment or discrimination must have occurred within the statute of limitations filing period.

Three Factors to Look At

There are three factors utilized to make this determination. Do the alleged acts involve the same type of discrimination tending to connect them in a continuing violation? Are the alleged acts recurring, or are they more in the nature of an isolated work assignment or employment decision? And does the act have the degree of permanence which would trigger an employees’ awareness of a duty to assert his or her rights?

Thus, where an aggrieved employee is subjected to sexual harassment by a supervisor, for example, by continually requesting sexual favors over the period of 5 years, the employee will most likely be permitted by the court to pursue a claim of harassment that occurred over the course of the full five years since the conduct was not isolated or sporadic, but was a continuing violation. On the other hand, in a case where an employee claims that a former supervisor harassed her once by making a sexual advance, but years later the employee was subjected to discriminatory conduct based upon her gender- unrelated to the sexual advance-the employer would likely be successful in having a claim arising from the earlier conduct dismissed despite that it may have been committed by the same supervisor against the same employee.

Mitigating Potential Liability

While most employers appreciate their obligation to investigate and remediate complaints of harassment or discriminatory conduct, it is also important for any employer who is aware of harassment or discrimination to immediately respond to the same even if no complaint is voiced by the employee. Simply because an employee does not assert a complaint until many years later does not mean that the employee has waived his or her right to pursue a claim for such illegal conduct. Significantly, the delay in the prosecution of a continuing violation of illegal conduct exposes the employer to greater liability. Thus, if such circumstances arise, having legal counsel to intervene and provide advice as to the proper handling of such matters can oftentimes mitigate potential liability.

Suzanne M. Marasco is a partner of Hill Wallack where she is a member of the Trial & Insurance and Employment & Labor Law Practice Groups. She concentrates in the representation of insurance companies in coverage disputes and complex claims such as employment and discrimination litigation.