A plaintiff who brings a hostile work environment claim under Title VII generally must file his/her administrative claim within 300 days of an act of discrimination, and generally cannot litigate claims based on conduct falling outside that limitations period.  However, under the "continuing violation doctrine," if the violation is of a continuing nature, the charge of discrimination may include all discriminatory acts, including those that occurred more than 300 days before the charge was filed.  This doctrine allows an employee to introduce evidence of, and seek damages for otherwise time-barred allegations if the allegations are deemed part of an ongoing series of discriminatory acts and there is some violation within the statute of limitations period that attaches to the earlier claims.

In a decision rendered earlier this year, the First Circuit Court of Appeals applied the continuing violation doctrine to a hostile environment claim brought by a female firefighter against her employer, the City of Providence. O'Rourke v. City of Providence.  The Court's application of this doctrine resulted in a decision that the employee should have been permitted to introduce evidence of  -- and seek damages for -- conduct that occurred during the three year period prior to the date she filed an administrative charge of discrimination and a federal court complaint alleging violations of Title VII.

The court identified the following criteria as relevant to a determination of whether the continuing violation doctrine should apply:

*  Whether the subject matter of the discriminatory conduct alleged is sufficiently similar that there is a substantial relationship between the otherwise untimely acts and the timely acts;

*  Whether the acts are isolated and discrete or occur with frequency or repetitively; and
*  Whether the acts are of sufficient permanence that they should trigger an awareness of the need to assert one's rights.

In analyzing O'Rourke's claim, which concerned a series of acts spanning the duration of her employment, the court had no difficulty finding the requisite substantial relationship between the untimely and timely acts, and that the acts had occurred with frequency.  With respect to the third criterion, the Court noted that a sexual harassment claim may not accrue until after a period of recurring acts of harassment, and that it may be the recurrence of events that demonstrate the hostile work environment and the lack of an innocent explanation.  Thus, concluding that O'Rourke's claim was predicated upon a cumulation of events that ultimately caused her to reach a "breaking point," the court held that a jury could have reasonably concluded that O'Rourke acted as soon as she had reason to realize she had been subjected to actionable discrimination, and that she should have been allowed to introduce evidence of early misconduct and to recover damages based on this misconduct.

The best way to protect against the burden of having to defend claims arising from employment decisions or actions that are long past is to take steps to make sure that violations do not occur.   Company policies and procedures pertaining to workplace misconduct and harassment should be designed to prevent and address not only conduct that is explicitly sexual in nature, but also any conduct that undermines an individual's ability to succeed at work because of gender.  Employers cannot assume that an employee's failure to timely complain about inappropriate behavior will eliminate such conduct as a basis for a viable discrimination or harassment claim.  However, the risk of liability can be reduced through the establishment and implementation of clear policies proscribing inappropriate conduct of all sorts, and through the training and information sharing necessary to equip supervisors and employees with the knowledge and means necessary to identify and appropriately address inappropriate behavior when it occurs.