Learning from a Sex Discrimination Suit - Part I
A recent federal court decision in a sex discrimination lawsuit was a partial victory for each of the two parties but a great opportunity for those of us who wish to learn from it.
Actually, a partial victory in a discrimination case is often a better outcome for the plaintiff than for the defendant because at least some claims go forward. And, that’s the reality reflected in the headline of the story in Law.com reporting on the case: “Associate’s Sex Discrimination Claims Proceed Against Law Firm” by Anthony Lin of the National Law Journal. The case is Collins v. Cohen Pontani Lieberman & Pavane, S.D.N.Y., 04 CV 8983(KMW)(MHD). The story was also mentioned on the Sui Generis- a New York Blog.
The 53-page decision by Hon. Kimba M. Wood, Chief U.S. District Judge for the Southern District of New York, systematically analyzed the defendant’s summary judgment motion and granted it in part but denied it in part. In the process, the decision provides so much material for comment that we will cover it in two installments and even then we will just touch on a few interesting points. This first installment will discuss one of the legal issues presented and a future second installment will have a few comments about the facts presented in the decision.
One of the more interesting legal issues presented in this case involved the “continuing violation doctrine.” That doctrine applies to “a series of separate acts that collectively constitute one ‘unlawful practice’” (Page 53 of the Decision.) By contrast, discrete discriminatory acts, even if related, are not covered by the doctrine. The distinction is important because the appropriate statute of limitations will apply separately to each discrete act. The Court did note that time-barred discrete acts or incidents can be admissible as circumstantial evidence of the intent to discriminate but they cannot be independent bases for liability. (Page 18 of the Decision)
According to this decision, examples of discrete acts include termination, failure to promote denial of transfer, refusal to hire. A well-established example of a continuing violation is a hostile work environment. Thus, in a hostile work environment, the discriminatory acts are evaluated for their cumulative effect and all are actionable if the most recent fall within the statute of limitations.
In this case, the Court ruled that the plaintiff’s allegations that work assignments were made in a discriminatory manner would be part of a continuing violation. Work assignments were critical because the defendant is a law firm that had required associates to bill 1800 hours per year. The plaintiff, an associate, alleged multiple examples of acts relating to work assignments that allegedly left her with insufficient work which affected her opportunities for salary increases and promotions.
The implications of this court’s ruling concerning the work assignment allegations are not difficult to recognize. Although the continuing violations doctrine allows some hostile work environment claims to survive when timeliness of the claim is at issue, for other types of claims the doctrine can be very restrictive. For example, if you were passed over for promotion last year and also previously passed over five years ago, a claim based on the latter may not be timely. In this hypothetical example, only the promotion decision made in the last year may be a basis for liability. But, a claim based on alleged discriminatory work assignments could be a “continuing violation” claim with poterntial liability for events five or even more years ago.
By analogizing work assignments to a hostile work environment, this court has, in effect, applied the continuing violation doctrine expansively. Practically, if applied the same way in future cases, this means incidents from many years ago can become a basis for liability if a more recent incident triggers a lawsuit from an employee.
As mentioned, we’ll comment on some of the facts of this case in a second installment
Image: U.S. Courthouse, Pearl Street, New York; from Website of U.S. District Court for the Southern District of New York.
