First Circuit Rejects Argument that Discrete Incidents of Harassment Were Part of a “Continuing Violation”
Discrimination on the basis of disability in the workplace is illegal under both Federal and State law in Massachusetts. Employers are required to make reasonable accommodations for employees (or potential employees) with disabilities. Just as it is illegal to engage in disability discrimination, it is illegal for an employer to retaliate against an employee who engages in certain protected conduct, which includes advocating on behalf of people with disabilities.
A retaliation claim under both the Americans with Disabilities Act (the “ADA”) and Massachusetts General Laws Chapter 151B (the Massachusetts anti-discrimination law, “Chapter 151B”) requires that (1) the plaintiff engaged in protected conduct; (2) the plaintiff experienced an adverse employment action; and (3) there was a causal connection between the protected conduct and the adverse employment action.
A plaintiff must bring a claim for retaliation under Chapter 151B within three years of the complained-of conduct. The statutory limitations period applicable to a claim under the ADA depends upon the type of claim and the title under which it falls. Typically, the statutory limitations period begins to run when the adverse employment action – such as firing, reprimand, denial of promotion, or other types of adverse action – occurs. What about when the conduct at-issue involves not any one specific action, but a course of conduct that creates a hostile environment for the employee. How does one know when the limitations period has begun?
In hostile work environment claims, where a single act of the harassment that is the basis of the claim may not be actionable on its own, plaintiffs may need to rely on conduct that would otherwise be barred by the statute of limitations to prove their cases. To ensure plaintiffs can seek redress for patterns of harassment that include time-barred conduct, courts have fashioned a doctrine known as the “continuing violations doctrine” to permit plaintiffs to include such conduct in their claim. As the Supreme Court explained in National Railroad Passenger Corp. v. Morgan, because the conduct at issue in a hostile work environment claim is repeated conduct, the unlawful employment practice at issue “cannot be said to occur on any particular day,” but instead “occurs over a series of days or perhaps years.” A hostile work environment claim will not be time-barred so long as all acts that constitute the claim are part of the same unlawful employment practice and at least one of the complained-of acts falls within the statutory limitations period.
Employees and employers may then wonder, what constitutes a “hostile work environment” rather than a “discrete act” of discrimination or retaliation? The First Circuit recently faced exactly this question in Rae v. Woburn Public Schools. The plaintiff, a school nurse, alleged that the Woburn Public Schools retaliated against her over the course of a decade as a result of her advocacy on behalf of students with disabilities; she also alleged she had been mistreated. In Rae, the First Circuit rejected the plaintiff’s attempts to frame a series of discrete acts as non-discrete components of a single retaliatory harassment claim. As the First Circuit explained, the continuing violations doctrine is an equitable doctrine, meant to ensure that meritorious discrimination claims are not rejected simply because the plaintiff needed to experience a repeated pattern of discrimination before the plaintiff could be expected to understand that the acts were discriminatory.
In rejecting the plaintiff’s claims that the continuing violations doctrine applied to her particular case, the First Circuit noted that the mere fact the plaintiff alleged that the separate unlawful employment practices constituting the alleged harassment were part of a continuing violation does not eliminate the court’s obligation “to evaluate whether the allegations include discrete discriminatory acts that are time barred.” In other words, claiming that discrete acts are part of a continuing violation does not make them so. The Court stated that, under both state and federal law, “a cause of action for discrimination or retaliation accrues when it has a crystalized and tangible effect on the employee and the employee has notice of both the act and its invidious etiology.” It pointed out that the plaintiff had alleged that her employer’s actions were discriminatory years before filing her lawsuit and, consequently, most of those acts constituted discrete acts to which the statute of limitations applied. The First Circuit held that the plaintiff could not simply link each act together and claim a pattern of harassing conduct, ruling that all but two of the discrete acts she alleged were time-barred. Moreover, the Court held that the plaintiff could not meet her burden of proving that the acts that were not time-barred were severe or pervasive harassment and, as a result did not rise to the level of creating a hostile work environment.