Fedweek Legal

In the last term, the Supreme Court issued a number of important decisions in the employment law area, especially in the area of interpreting the Americans with Disabilities Act which served to narrow the scope of the Act. However, the Court issued a favorable decision for complainants in National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (6/10/02), that has positive implications for federal employees who allege a hostile working environment involving repeated conduct in their discrimination complaints. While complainants who allege Title VII violations (race, color, sex, national origin, and/or religion) must file their complaints within the statutory and regulatory deadlines, 45 days for federal employees, those who charge a hostile working environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the 45-day filing period.

Where discrete acts are alleged, e.g., denial of competitive promotion or discipline, each discriminatory act starts a new clock for filing within the required 45-day time period because, as the Court explained, “[e]ach incident of discrimination and each retaliatory adverse employment action constitutes a separate actionable unlawful employment practice.” Consequently, discriminatory acts that fall outside of the 45-day time period are not actionable even if they are related to acts that were timely filed.

Nevertheless, hostile work environment claims are different from discrete act claims as they involve repeated conduct that occurs over a period of time. Thus “a hostile work environment claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice.” As long as one act contributing to the hostile work environment occurs within the 45-day period, “the entire time period of the hostile work environment may be considered by a court [or the EEOC] for the purposes of determining liability.”

This decision is very important for federal employees who file hostile working environment complaints based upon harassment because such conduct often occurs over a long period of time. In contrast to untimely discrete acts which can only be used as background evidence, repeated acts of harassment may all be actionable as long as the last act occurs within the 45-day period.

Therefore, it is critical that federal employees who suffer from a hostile working environment due to discrimination contact their EEO office or an EEO counselor within 45 days of the last instance of harassment.

** 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. **