When Does the Statute of Limitations on Harassment Begin: The Continuing Violation Doctrine
By enacting the Law Against Discrimination, New Jersey has provided its workers with some of the strongest anti-discrimination laws in the United States. New Jersey’s Law Against Discrimination protects against employment discrimination, including harassment, because of these protected categories
- national origin
- familial status
- marital status, domestic partnership or civil union status
- affectional or sexual orientation
- gender identity or expression
- atypical hereditary cellular or blood trait
- genetic information
- liability for military service
- mental or physical disability
- perceived disability
- AIDS and HIV status
Like all laws, New Jersey’s Law Against Discrimination has a limitation period. Statutes of limitations limit the time within which a person may file suit for a particular type of claim. The statute of limitations for filing a suit under the Law Against Discrimination is two years from the date when the alleged liability for the suit “accrued.” In a lawsuit for personal injury suffered in an auto accident, determining the date when the “clock” on the limitation period starts is easy – it is the date of the accident (unless the injuries did not develop until later).
In the employment law context, determining when the clock begins for a discrete employment action is likewise often not difficult to determine. For instance, when an employee is fired, the statute generally begins to run on the date that she is fired.
In other areas, sometimes it is not so straightforward. For example, when an employee suffers long term harassment, does the clock begin when the harassment started, when it ended or somewhere in between?
The New Jersey Supreme Court has developed the “continuing violation doctrine” to deal with this issue, and established a distinction between discreet adverse employment actions, and long term harassment. In the case of a discrete action which would violate the Law Against Discrimination, such as discriminatory firing, demotion, discipline or similar actions, the clock begins to run when the discrete action happened.
However, in harassment, very often no single action by the employer or the employee’s supervisors will rise to a violation of the Law Against Discrimination by itself, but taken together they create a severe or pervasive hostile work environment in violation of the statute. This is when the continuing violation doctrine applies. The Supreme Court explained that “The doctrine provides that when an individual experiences a continual, cumulative pattern of [harassing] conduct, the statute of limitations does not begin to run until the wrongful action ceases.”
In the case of National Railroad Passenger Corporation v. Morgan, The United States Supreme Court has also adopted the continuing violation doctrine as governing suits alleging harassment in violation of Title VII of the Civil Rights Act of 1964 Title VII is the federal counterpart to New Jersey’s Law Against Discrimination, although its protections are not as extensive, and its limitation period is much shorter.
There are several takeaways. First, if you are an employee, there is a remedy if you have suffered a long course of prohibited harassment. However, if any one of the instances could be called a discrete act, such as demotion or termination, assume the clock began to run on that date and don’t wait more than two years to file!
If you are employer, you should take the continuing violation doctrine as all the more reason to have an effective ant-harassment policy – one that really works!
McLaughlin & Nardi’s employment lawyers represent both employers and employees in a wide range employment litigation and employment compliance. Call (973) 890-0004 or email us to set up a consultation.