New Jersey Employment Law Decision Examines Limits of the Continuing Violation Doctrine Under the NJ Law Against Discrimination

The New Jersey Law Against Discrimination is one of the strongest anti-discrimination employment laws in the country.  Under the Law Against Discrimination, discriminatory harassment which constitutes a “continuing violation” can be actionable even if it occurred before the two-year statute of limitations provided that it was a continuous course of conduct which only ended within the limitation period.  A New Jersey appeals court recently examined when harassment does, and doesn’t, constitute a continuing violation in the case of Michael Acey vs. City of Paterson, Manuel Ojeda and William Rodriguez.

Background: The Allegations

According to the Appellate Division’s opinion, Michael Acey was hired by the City of Paterson in 1998 as a laborer in the Department of Public Works. He was promoted to supervisor in 2012.  In 2017 he was promoted to supervisor of the night shift at his own request so that he could work a second job.

In 2017, William Rodriguez was promoted to deputy director of the DPW.  Rodriguez was previously a general supervisor in the DPW. Rodriguez told Acey that promotions to fill his position would be based on seniority.  Rodriguez advised that meant Acey would likely be appointed to the position of general supervisor.  However, another employee, Jackson, was appointed to that role.

Thereafter, Acey continued to inquire about the position. Acey alleged that in 2017 he was met with sexual innuendo in response by Rodriguez and Manuel Ojeda, assistant director of the DPW, with them saying words to the effect of, “Baby, you can have whatever you want if you do what you gotta do,” and called him a “boy toy.” Acey asked Rodriguez for a raise and Rodriguez instructed Ojeda to “put his penis on [Acey’s] face and see if it turns red.”  Ojeda allegedly later asked Acey “How is your butt hole?” and said, “we have to get him a new butthole like Missy Elliott.”

No further incidents happened until late 2019, when Acey alleges that Ojeda pushed against his backside and breathed on his neck, and also that Rodriguez told male DPW employees that he “only sees… [Acey] playing with little boys” and that Acey “fills their butt with butter.”

One and a half years later, Acey filed an internal complaint form alleging that Ojeda, when discussing a hole in the ground, asked plaintiff “to take a picture of his butt hole and send it” to Ojeda.  Acey said that he was worried that Rodriguez and Ojeda would retaliate against him for his complaint.

Paterson investigated the allegations and found them unsubstantiated. A week later Acey filed a union grievance.  Acey alleged that Rodriguez and Ojeda retaliated against him for the complaint. For instance, he alleged that Ojeda said, “he would blow up (Acey’s) a##hole so bad,” berated him in crude language, and denied him overtime.

Acey’s Lawsuit in Superior Court

Thereafter, Acey filed a lawsuit in the Superior Court of New Jersey in Passaic County alleging hostile work environment, sexual harassment, and retaliation in violation of New Jersey’s Law Against Discrimination. He claimed that the harassment was ongoing and constituted a continuing violation, thereby extending the Law Against Discrimination’s two-year statute of limitations. Three years later, in January 2025, the trial judge dismissed his lawsuit on summary judgment, explaining that his claims were time barred and only the April 2021 incident was within the two years prior to when he filed his lawsuit, and that incident did not create a hostile work environment. The judge found that it was a single, discreet act, since the other acts were too far separated from the pre-limitation period allegations to constitute a continuing violation.  He also found the single act within the statute of limitations was not severe or pervasive, and therefore could not constitute a hostile work environment. The judge also rejected the retaliation claim because Acey alleged that much of the harassment occurred before he filed his lawsuit.

Acey appealed to Appellate Division of New Jersey Superior Court.

The Appellate Division’s Opinion

The Appellate Division affirmed the rejection of the continuing violation doctrine. The continuing violation doctrine will allow suits for acts which occurred before the Law Against Discrimination’s limitation period.  However, the acts must be continuous, cumulative and constitute a single, ongoing pattern of harassment. If so, the violation would not end until the conduct stopped, and if it stopped within the two-year statute of limitations, the entire continuing course of conduct would be considered within the limitation period, even the conduct which happened prior.

However, because of the one-and-a-half-year gap between the complained of conduct, the Appellate Division found that the acts were not one continuing violation and only April 2021 allegation could be considered.  It agreed with the trial judge that the act which fell within the statute of limitations was isolated, sporadic and infrequent, and did not include sexual innuendo, and thus could not be considered part of a continuous course of conduct.  The Appellate Division also rejected the failure to promote claim because it happened before the statute of limitations and was a discreet act of discrimination which, even if true, fell outside of a continuing violation.

The Appellate Division also affirmed rejection of the hostile work environment claim.   The court explained that the severe or pervasive hostile work environment required for a violation of the New Jersey Law Against Discrimination must be so severe or pervasive that a reasonable person would believe the conditions of their employment had been negatively changed or altered, and the working environment is hostile, and the alleged acts which fell inside the statute of limitations did not meet that threshold.

The Takeaway

The New Jersey Law Against Discrimination provides that harassment which falls outside the limitation period may be actionable if it constitutes one continuous course of conduct which only ends, if at all, within the two-year limitation period.  However, it must be frequent and continuous enough to constitute a continuous course of conduct; extended gaps will defeat the application of the continuing violation doctrine.  In such a case, acts of harassment within the two-year limitation period still provide the basis for lawsuit, but only those acts.

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