Before a federal employee can file a formal discrimination complaint, he or she must initiate EEO counseling within forty-five (45) days of the discriminatory event. There are exceptions to this strict deadline, however, if the employee is alleging a “hostile work environment” that has existed over several months or even years. This is referred to as a “continuing violation.”
A few months ago, the U.S. Supreme Court clarified and solidified the doctrine of the continuing violation. In National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061, 2002 U.S. Lexis 4214 (2002), the Supreme Court ruled that by their very nature, hostile work environment claims involve repeated conduct and that the unlawful conduct cannot be said to occur on a particular day. One action standing alone may not be sufficient to rise to the level of a civil rights violation. Cumulatively, however, these otherwise unactionable events may give rise to a harassment charge.
Therefore, when an individual alleges a hostile work environment claim, he or she may include behavior that occurred more than forty-five days earlier, as “long as any act contributing to that hostile environment takes place within the statutory time period.” Morgan, 122 S. Ct. at 2068. As long as at least one event falls within the last 45-days, then all the events which comprise a hostile work environment can collectively give rise to the Agency’s liability. In order to have the continuing violation rule apply, the employee must claim that the series of acts cumulatively demonstrates a practice that occurred prior to and during the 45-day period.
Although the continuing violation argument may let an employee broaden the scope of his or her complaint, it is not recommended that the employee ignore the 45-day rule. To ensure that an employee meets all of his or her obligations, the employee should always initiate EEO counseling within the first 45-days. However, sometimes an employee does not realize until later that a certain action was part of a larger practice of discrimination. In those circumstances, the employee should identify all the possible events, including those that occurred more than 45-days earlier. In addition, if more events of the hostile work environment happen after the formal complaint is filed, the employee should timely inform the EEO office.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **