Title VII and the Continuing Violation Theory: A Return to Congressional Intent
Title VII and the Continuing Violation Theory: A Return to Congressional Intent
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1 Janis Roney Edinburgh, Title VII and the Continuing Violation Theory: A Return to Congressional Intent , 47 Fordham L. Rev. 894 (1979). Available at:
In order to bring a claim of employment discrimination under Title VII of
the Civil Rights Act of 19641 (Act), a private plaintifff must first meet the
jurisdictional prerequisite3 of filing a charge with the Equal Employment
Opportunity Commission4 (EEOC) within 180 days of the alleged
discrimina1. 42 U.S.C. §§ 2000e to 20ooe-17 (1976). Id. § 200Ce-2(a) provides: "It shall be an unlawful
employment practice for an
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which
would deprive or tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such individual's race, color, religion, sex,
or national origin."
Employment agencies, labor unions, and joint labor-management committees are similarly
barred from discriminating on the basis of race, color, religion, sex, or national origin. Id.
§ 200e-2(b) to (d). Other unlawful employment practices barred by the Act include discriminating
against an employee or applicant for attempting to enforce his rights under the Act, id.
§ 2000e-3(a), and printing or publicizing notices indicating any discriminatory preference,
limitation, or specification in relation to employment. Id. t- 2000e-3(b).
2. The Act specifically allows individuals to bring a private cause of action for discrimination
in employment. Id. § 2000e-5(f). The Act also provides for a dual enforcement scheme and
empowers the Equal Employment Opportunity Commission (EEOC) to bring an action when It
has been unable to secure an acceptable conciliation agreement. Id. For a general discussion of
some of the practical problems caused by the dual enforcement scheme, see Sullivan, The
Enforcement of Title VII: Meshing Public and Private Efforts, 71 Nw. U. L. Rev. 480 (1976). Tile
focus of this Note will be on private suits.
3. There is some debate as to whether the 180 day time limit is a jurisdictional prerequisite to
filing suit or a statute of limitations subject to equitable tolling. The clear weight of authority is
that it is a jurisdictional prerequisite. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n.4
(1977); Alexander v. Gardner-Denver Co., 415 U.S. 36,
); Olson v. Rembrandt Printing
Co., 511 F.2d 1228, 1231
(8th Cir. 1975)
; Moore v. Sunbeam Corp., 459 F.2d 811, 821 n.26 (7th
Cir. 1972); B. Schlei & P. Grossman, Employment Discrimination Law 871 (1976). But see
Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011, 1014 n.6 (5th Cir. 1971);
Jackson & Matheson, The Continuing Violation Theory and the Concept of Jurisdiclionin Title
VII Suits, 67 Geo. L.J. 811, 841-50 (1979); Note, ContinuingViolations in Private Suits Under
Title VII of the Civil Rights Act of 1964, 32 Ark. L. Rev. 381, 384-85 (1978).
4. 42 U.S.C. § 2000e-5(b) (1976). Whenever a charge is filed, the EEOC must serve a notice
of the charge upon the employer within 10 days, and then make an investigation of the
complaint. If the EEOC determines that there is reasonable cause to believe that the charge Is true, It
attempts to eliminate the unlawful practice through informal conciliation. Id. If the EEOC is
unable to secure an acceptable conciliation agreement within 30 days after the charge is filed, it
may bring a civil action against the employer, unless the employer is a government agency, in
which case the charge is referred to the Attorney General. The complaining employee may
intervene in the EEOC's action. Id. § 2000e-5(f). If the EEOC determines that there is no
reasonable cause to believe that the charge is true, it dismisses the charge and notifies both
parties. Id. § 2000e-5(b). If the employee's charge is dismissed by the EEOC, or if the EEOC or
the Attorney General has not filed a suit within 180 days of the filing of the charge and there has
tion.5 Because of the severe impact that this brief filing period can have on
the possible claims of unsophisticated employees, courts have avoided strict
application of the requirement through a liberal interpretation of when the
violation occurred. When the employer's discrimination against the plaintiff
consists of a series of acts rather than a single isolated incident, the EEOC
filing will be timely if it is made within 180 days of the last discriminatory
act.6 In such a case, the discrimination will be treated as one continuous
violation rather than a series of isolated acts, and recovery will be permitted
for the entire period of discrimination rather than solely for the incidents that
occurred within 180 days of the filing. 7
This theory of a continuing violation due to repeated discrimination against
the plaintiff was endorsed by Congress 8 in the 1972 amendments to the Act. 9
Some courts, however, have expanded the theory and applied it to cases in
which there is no actual continuing discrimination against the complaining
employee. These courts have held that the filing period is measured not from
the last occurrence of discrimination against the plaintiff, but from either the
last occurrence of any similar discrimination by the employer against other
been no conciliation agreement to which the plaintiff is a party, the EEOC must notify the
employee, and the employee may then bring a civil action within 90 days after the notice. Id. §
The original charge may also be filed by the EEOC. Id. § 2000e-S(b). In such a case, any
person whom the charge alleges was discriminated against may also bring an action within 90
days of receiving notice from the EEOC. Id. § 2000e-5(f). For a detailed discussion of this
procedure, see Sape & Hart, Title VII Reconsidered: The EqualEm ployment Opportunity Act of
1972, 40 Geo. Wash. L. Rev. 824, 862-84 (1972).
5. 42 U.S.C. § 2000e-5(e) (1976). If the employee has initially instituted proceedings with a
proper state or local agency, as is required if such an agency exists, id. § 2000e-5(c), the charge
must be filed within 300 days of the alleged violation, or within 30 days after receiving notice that
the state or local agency has terminated the proceedings under state or local law, whichever is
earlier. Id. § 2000e-5(e). If state or local law prohibits the discrimination that the plaintiff alleges,
he may not file with the EEOC until 60 days after he has commenced proceedings under the state
or local law. Id. § 2000e-5(c). Regardless of the length of the state filing period for invoking state
remedies, the state filing must be within 180 days of the alleged violation in order for the plaintiff
to have the benefit of the 300 day period for his EEOC filing. Olson v. Rembrandt Printing Co..
511 F.2d 1228, 1232-33
(8th Cir. 1975)
6. See pt. II(A) infra.
7. See Acha v. Beame, 570 F.2d 57, 65 (2d Cir. 1978); Egelston v. State Univ College, 535
F.2d 752, 755
(2d Cir. 1976)
; Macklin v. Spector Freight Sys., Inc., 478 F.2d 979, 987 (D.C.
Cir1973). The remedies provision of Title VII authorizes the court to order an injunction or other
affirmative relief, including, but not limited to, reinstatement or hiring with or without back
pay. 42 U.S.C. § 2000e-5(g) (1976). The provision is modeled after § 10(c) of the National Labor
Relations Act, 29 U.S.C. § 160(c) (1976), and is intended to give the courts wide discretion in
fashioning the most complete relief possible in order to make the victims of unlawful
discrimination whole. 118 Cong. Rec. 4292 (1972) (report of Sen. Williams); see Franks v. Bowman Transp_
Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 419 (1975). There
is, however, a two year limitation on back pay liability. 42 U.S.C. § 2000e-St) (1976).
8. 118 Cong. Rec. 4941 (1972) (report of Sen. Williams), discussed at note 33 infra and
9. Equal Employment Opportunity Act of 1972, Pub. L. No. 92-201, 86 Stat- 105
(1972) (codified at 42 U.S.C. § 2000e to 2000e-17 (1976)), discussed at notes 31-33 inlfra and
employees, 10 or from the last date that the plaintiff experiences any effect
from a prior discrimination against him. I In applying the continuing
violation theory in this manner, these courts have generated inconsistent case law
and frustrated the very purpose of having a filing period.
This Note will analyze the various applications of the continuing violation
theory and argue that its proper use should he limited to cases involving
actual discrimination against the plaintiff within 180 days of his EEOC filing.
Part I will trace the origins of the continuing violation theory and the
congressional response to it in the 1972 amendments. In an effort to develop a
framework for the proper limitation of the theory, Part II will categorize the
cases into three distinct theories of a continuing violation-present
discrimination, systemic, and present effects 2-- and will illustrate the
application of these theories in various factual situations. Finally, it will be proposed
that an extension of the filing period will better alleviate the problems caused
by its brevity than do the expansions of the continuing violation theory,
ORIGIN OF THE CONTINUING VIOLATION THEORY
When Congress enacted the Civil Rights Act of 1964,13 it established a
ninety day period within which to file Title VII claims with the EEOC. 14 If a
plaintiff failed to file within that period, he was barred from later bringing
suit for any claim he might have. Although the legislative history of the Act is
unclear as to why such a short filing period was chosen,' 5 courts have
generally interpreted the purpose to be similar to that of a statute of limitations-to
compel plaintiffs to bring suits promptly.' 6
In 1968, however, the court in King v. Georgia Power Co. ' 7 refused to
apply the filing period strictly and held that a plaintiff's suit to recover for
discriminatory practices that had occurred more than ninety days prior to the
EEOC filing was not automatically time-barred when the violations continued
into the filing period.18 Citing no precedent and offering no explanation of the
theory, the court held that the time of the EEOC filing was of no importance
because "the violations of Title VII alleged in the complaint may be construed
as 'continuing' acts." 1 9 Later cases adopted this theory of continuing present
discrimination and allowed plaintiffs to sue as long as they had filed their
EEOC charges within ninety days of the cessation of the discrimination. 20
Soon after the King decision, the concept of a continuing violation was
expanded to cases of an employer's systematic discrimination against a group
of employees. Under this "systemic" theory, the courts held that the filing
period for the plaintiff's claim did not begin to run if the employer continued
to discriminate in a similar way against other employees, and the plaintiff was
still affected in some way as a result of the prior discrimination against him. 2 1
In Robinson v. Lorillard Corp.,2 2 the court held that an ongoing
discriminatory seniority system affecting black employees automatically constituted a
continuing violation against all those employees even though there was no
allegation of a specific violation within ninety days of the EEOC filing.2 3 The
Robinson decision was indicative of a judicial trend towards facilitating suits
under Title VII whenever possible, and a feeling that a liberal interpretation
of the time limit would expedite the eradication of discriminatory systems. As
the court in Culpepperv. Reynolds Metals Co. 24 wrote: "Title VII of the 1964
Civil Rights Act provides us with a clear mandate from Congress that no
longer will the United States tolerate this form of discrimination. It is,
therefore, the duty of the courts to make sure that the Act works .... ,,25
The concept of a continuing violation was further expanded to include a
plaintiff experiencing a present effect from a prior discriminatory system that
had been discontinued. In Tippett v. Liggett & Myers Tobacco Co., 26 the
plaintiffs had been laid off pursuant to an established policy that
discriminated against women. 27 After the policy was discontinued, the women were
rehired without being credited with their prior accumulated seniority, and
filed an EEOC charge seeking reinstatement of their seniority rights. The
court held that although both the layoff and rehiring had occurred more than
ninety days prior to the EEOC filing, the employer's consistent refusal to
credit the plaintiffs with their old seniority perpetuated the past
discrimination, and thus constituted the basis for a claim of a present violation. 28 The
tchoautrtthjuestpifriieodr tdhiisscreimxpinaantdioedn cwoonucledptotohferawcisoentinnoutinbge veifofelacttiiovnelybyreemxpedlaieindi.n2g9
Judicial use of the continuing violation theory was by no means uniform.
While some courts utilized the theory in the various ways described above,
other courts rejected the concept of a continuing violation. These courts held
that any claim not filed within ninety days of the alleged discrimination was
time-barred, reasoning that "It]here is no known authority to the effect that a
failure to rectify an alleged unlawful act converts it into a continuing
transaction or suspends the 90 day period."3 0
In 1972, Congress amended the Act in an effort to facilitate prosecution of
Title VII claims. In recognition of the difficulties created by the brevity of the
90 day EEOC filing period, it extended the period to 180 days. 3 ' This
extension was not intended in any way to eliminate the continuing violation
theory. Indeed, Congress implicitly endorsed the theory by imposing a two
year limitation on back pay liability. 32 Such a limitation would be superfluous
if each act of discrimination were to be treated as separate and distinct,
because an employer then would be liable solely for those violations that had
occurred within 180 days of the EEOC filing. In addition, Congress expressly
endorsed the theory in its explanation of the scope of the amendments:
In establishing the new time period for the filing of charges, it is not intended that
existing law, which has shown an inclination to interpret this type of time limitation to
give the aggrieved person the maximum benefit of the law, should be in any way
circumscribed. Existing case law which has determined that certain types of violations
are continuing in nature, thereby measuring the running of the required time period
from the last occurrence of the discrimination and not from the first occurrence is
continued, and other interpretations of the courts maximizing the coverage of the law
are not affected. 33
This statement clearly endorses the application of the continuing violation
theory when the discrimination involved is ongoing against the plaintiff
within 180 days of the EEOC filing. At the same time, the language
undermines the reasoning of the Tippett decision because it endorses the
measurement of the filing period from the last date of discrimination, not from the last
date of an effect from that discrimination. Because the language is not express
as to whether the discrimination alleged must be continuous as to the
particulax plaintiff or whether it can be continuous as to other employees, its effect
on the systemic theory is unclear. The use of the vague phrase "other
interpretations of the courts maximizing the coverage of the law are not affected" is
also perplexing. It is uncertain whether this language is referring to a form of
the continuing violation theory or some other liberalization of the filing
While the 1972 amendments evidence congressional approval of the
continuing violation theory, the extent of this approval was left ambiguously
open. This ambiguity is reflected in the morass of subsequent court decisions.
A review of this case law reveals that judicial use of the continuing violation
theory in all its forms has greatly increased, but not without considerable
confusion and inconsistency.
CURRENT USES OF THE CONTINUING VIOLATION THEORY
A continuing violation under the present discrimination theory requires a
series of discriminatory acts against the plaintiff that is still ongoing within
daims. "It is intended by expanding the time period for filing charges . . . that aggrieved
individuals, who frequently are untrained laymen who are not always amare of the discrimination
which is practiced against them, should be given a greater opportunity to prepare their charges
and file their complaints, and that existent but undiscovered acts of discrimination should not
escape the effect of the law through a procedural oversighL" 118 Cong. Rec. 4941 (1972) (report
of Sen. Williams).
32. Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 4Wg), 86 Stat. 105
(1972) (codified at 42 U.S.C. § 2000e-5(g) (1976)).
33. 118 Cong. Rec. 4941 (1972) (report of Sen. Williams); see 118 Cong. Rec. 7563, 7S6S
(1972) (reprint of House Conference Report).
180 days of the EEOC filing. In order for this continuing discrimination to
exist, some type of continuing relationship between the plaintiff and the
employer is necessary. In such a case, the filing period will be measured from
the last date of discrimination, 34 and the plaintiff will be entitled to recover
for discrimination that took place prior to the filing period, subject to the two
year limitation on back pay liability, 35 because the violation will be treated as
a continuous one rather than a series of isolated acts. 36 The theory applies not
only in cases of discrimination directed against a particular employee, but also
when the discrimination against the plaintiff is part of a broader systematic
discrimination against a group of employees, as long as there is actual
discrimination against the plaintiff within 180 days of the filing. The existence
of the discriminatory system, however, does not strengthen the plaintiff's
ability to bring suit; what is significant is the existence of a continuing
violation against the particular plaintiff. 37
Because of the necessity of a continuing relationship between the employer
and the plaintiff, the present discrimination theory generally does not apply
when the plaintiff has either been refused a job or discharged from
employment because of an employer's discrimination. In both situations, there is no
ongoing relationship and thus no opportunity for an employer to continue to
discriminate against the plaintiff. If the plaintiff fails to file an EEOC charge
within 180 days of either the refusal to hire or the discharge, he is generally
barred from bringing suit. 38 An exception may exist, however, when there has
been some type of continuing relationship between the employer and the
plaintiff after the discriminatory discharge or refusal to hire. In Weise v.
Syracuse University,39 two faculty members claimed that they had been fired
by the university solely because they were women. Although neither plaintiff's
EEOC charge was filed within 180 days of her firing, 40 each had requested
reconsideration of her termination within 180 days of her EEOC filing. The
court held that the filings were timely because it found that the refusal to
reconsider the discharges was a continuing discrimination. 41 Thus, present
discrimination after the employment relationship has been terminated is
possible, but only when special circumstances serve to perpetuate the
The primary application of the present discrimination theory is in the
situation of ongoing discrimination against present employees. For example, in
Corbin v. Pan American World Airways, Inc., 42 a black service supply clerk
brought suit claiming that he had been demoted from lead clerk because of his
race, that his employer had failed to reappoint him to his former position
when it became available, and that he was being paid less than the nonblack
employees who were performing the same work. 4 3 Although the plaintiff
failed to file his EEOC charge until more than five years after his demotion,
the court held that his filing was timely because it alleged continuing acts of
discrimination by the employer that caused him to remain at his lower
position until the time of the filing.4 4 The court stated that the claim of
repeated failure to promote and denial of equal pay involved ongoing aspects
of the employer-employee relationship, and, therefore, was a sufficient
allegation of a continuing discrimination.4 5
Not all acts of discrimination become continuous merely because the
plaintiff is still employed. A single discriminatory act will start the running of the
filing period, and there will be no continuing violation unless there is
subsequent additional discrimination against the plaintiff. For example, in the
case of a discriminatory refusal to promote an employee, if there are neither
subsequent refusals to promote him nor promotions of others in preference to
him, his continued employment in the lower position is not by itself sufficient
to constitute a continuing violation. 4 6
41. Id. at 412-13; accord, Egelston v. State Univ. College, 535 F.2d 752, 755
(2d Cir. 1976)
Logan v. General Fireproofing Co., 309 F. Supp. 1096, 1098
. But see Wallace
v. International Paper Co., 426 F. Supp. 352, 3
54 (W.D. La. 1977
42. 432 F. Supp. 939 (N.D. Cal. 1977).
43. Id. at 943.
44. Although the plaintiff had been promoted by the time his actual lawsuit %wasbrought, this
promotion was not until a year and a half after the filing of his EEOC charge. Id. at 942.
45. Id. at 944. Although the EEOC filing was held timely for jurisdictional purposes, the
court did hold against the plaintiff on the merits of the case. Id. at 946. The court's reasoning as
to the timeliness of the filing has been applied not only to promotion cases, but also to the use of
biased tests in job placement and discriminatory transfers and demotions. See Cedeck v.
Hamiltonian Fed. Say. & Loan Ass'n, 13 Empl. Prac. Dec. 11,593, at 7147 (8th Cir. 1977) (repeated
failure to promote the plaintiff); Noble v. University of Rochester, 535 F.2d 756, 758
(same); Pacific Maritime Ass'n v. Quinn, 491 F.2d 1294, 1297 (9th Cir. 1974) (same); Moore
v. Sunbeam Corp., 459 F.2d 811, 827 (7th Cir. 1972) (same); Lattimore v. Loews Theatres, Inc.,
410 F. Supp. 1397, 1399 (M.D.N.C. 1975) (refusal to transfer); Henderson v. First Nat'l Bank,
344 F. Supp. 1373, 1375 (M.D. Ala. 1972) (discriminatory tests); Tooles v. Kellogg Co., 336 F.
Supp. 14, 17 (D. Neb. 1972) (refusal to transfer); Moreman v. Georgia Power Co., 310 F. Supp.
327, 328 (N.D. Ga. 1969) (discriminatory tests).
46. See Guerra v. Manchester Terminal Corp., 350 F. Supp. 529, 5
31 (S.D. Tex. 1972
modified, 498 F.2d 641 (5th Cir. 1974); Givler v. Chesapeake & Potomac Tel. Co., 5 Empl. Prac.
Dec. 7,969, at 6585 (E.D. Va. 1972); Younger v. Glamorgan Pipe & Foundry Co., 310 F.
Supp. 195, 197
(W.D. Va. 1969)
; Fore v. Southern Bell Tel. & Tel. Co., 293 F. Supp. 587, 587
(W.D.N.C. 1968). Suit may be permitted in these types of situations under the systemic or present
effects theories. See pt. II(B), (C) infra.
Similarly, a discriminatory layoff by itself is a completed act at the time it
occurs and cannot be the basis for a claim of a continuing violation. 47 An
employee can claim a present violation after a layoff, however, if the
employer has refused to reconsider rehiring him within 180 days of the EEOC
filing, or has hired others in preference to him within that time period. In Cox
v. United States Gypsum Co., 48 five plaintiffs charged their employer with a
discriminatory layoff that had occurred more than ninety days49 prior to their
EEOC charges. In addition, two of the plaintiffs explicitly claimed that the
employer had recently rehired men with less seniority and had hired new men
to fill jobs that they were qualified to perform.50 The Seventh Circuit held
that the filing was timely, stating that the "charges should be deemed a
sufficient foundation for an action based on discriminatory failure to recall
these plaintiffs." 5 1 The court treated the failure to rehire as one
single ongoing violation that extended into the statutory time perpioadr.t5 2of a
The present discrimination theory is not applicable when a plaintiff alleges
discrimination in retirement benefits. Although a plaintiff may claim that he is
receiving a lower pension than other former employees, the retirement plan
itself is generally neutral;5 3 the reduced payments are the result of a
discriminatory salary that had been paid while the plaintiff was employed. In
these cases, the employment relationship, and thus the actual discrimination,
terminates when the employee retires. If he fails to file within 180 days of that
date, he is time-barred. 54
The present discrimination theory is an appropriate interpretation of the
statutory requirement of a timely EEOC filing. While providing employees
with a greater opportunity to challenge discriminatory actions, its restrictive
parameters ensure that its use does not prejudice the rights of employers.5 5
Any suggestion that this approach contravenes the statutory time limit ignores
Congress' explicit endorsement of the theory in the 1972 amendments.5 6 The
theory complies with the statutory purpose of the 180 day time limit, and
establishes a relatively dear standard for courts to follow in various factual
The systemic theory is utilized when the plaintiff alleges not only a
violation against him individually, but also a broader discriminatory system that
affects an entire group of employees. Under the theory, the suit may continue
even when there is no actual violation against the plaintiff within 180 days of
the EEOC filing, provided that, within that period, the employer has
continued to discriminate against other employees and the plaintiff is still affected
in some way, no matter how minute, by the prior discrimination against him.
The plaintiff's ability to bring an otherwise time-barred suit is therefore
directly dependent upon the employer's conduct with respect to other
employees. It is submitted, however, that in endorsing the continuing violation
theory, Congress could not have intended application of the theory when
there is no ongoing violation against the plaintiff. Furthermore, application of
the systemic theory creates inequitable distinctions between plaintiffs based
on the employer's conduct and not on the timeliness of their claims.
Unlike the present discrimination theory, the systemic theory has been
applied in cases of a discriminatory refusal to hire. In Kohn v. Royall, Koegel
& Wells, 57 a second year law student was refused a summer job with a large
New York City law firm and filed an EEOC charge alleging sex
discrimination one year later. The court permitted the plaintiff to bring a class action,5 8
55. It would be difficult for an employer to complain that a claim of discrimination is stale
when the discrimination is actually continuing within 180 days of the EEOC filing.
56. See note 33 supra and accompanying text.
57. 59 F.R.D. 515 (S.D.N.Y. 1973), appeal dismissed, 496 F.2d 1094 (2d Cir. 1974).
58. Suits brought against discriminatory systems are frequently class actions, which are
considered to be an appropriate enforcement mechanism for Title VII claims. See generally
Comment, The Class Action and Title VII-An Overiew, 10 U. Rich. L. Rev. 3
). The courts
are quite liberal in applying the requirements of Rule 23 of the Federal Rules of Civil Procedure
to Title VII cases. See, e.g., Barnett v. W. T. Grant Co., 518 F.2d 543, 547-48
(4th Cir. 1975)
Rodriguez v. East Tex. Motor Freight, 505 F.2d 40, 50 (5th Cir. 1974), vacated, 431 U.S. 395
(1977); Capad v. Katz & Besthoff, Inc., 72 F.R.D. 71, 78
(E.D. La. 1976)
; Mc Broom v. Western
Elec. Co., 7 Empl. Prac. Dec. $ 9347, at 7454 (M.D.N.C. 1974). The scope of the suitable class
naturally varies from case to case, and it is well established that all members of the class need not
have filed a claim with the EEOC as long as they were eligible to file at the time that the plaintiff
representing the class filed. Franks v. Bowman Transp. Co., 424 U.S. 747, 755 (1976); Wetzel v.
Liberty Mut. Ins. Co., 508 F.2d 239, 246 (3d Cir.), cert. denied, 421 U.S. 1011 (1975); Bowe v.
Colgate-Palmolive Co., 416 F.2d 711, 719-20
(7th Cir. 1969)
; Oatis v. Crown Zellerbach Corp.,
398 F.2d 496, 499 (Sth Cir. 1968); Wilhite v. South Cent. Bell Tel. & Tel. Co., 426 F Supp. 61,
(E.D. La. 1976)
; CWA v. New York Tel. Co., 8 Fair Empl. Prac. 509, 513 (S.D.N.Y 1974),
Gilbert v. General Elec. Co., 59 F.R.D. 267, 272 (E.D. Va. 1973). In determining who is eligible
even though her EEOC filing was untimely, because she had alleged that the
employer engaged in an ongoing pattern of sex discrimination. The court
explained that the result was "a way of defining the jurisdiction-conferring
concept of continuing violation so as to carry out the underlying purposes of
the Act."5 9 It reasoned that the allowance of the plaintiff's suit was justifiable,
despite the statutory time limit, because the employer's violation had
continued and vas therefore "fresh. '60 Although there was neither a continuing
relationship with the plaintiff nor a discrimination against her within 180 days
of her EEOC filing, the plaintiff was permitted to sue because of the
fortuitous circumstance that the employer had since discriminated against
others. 6' In allowing the plaintiff to sue, the court essentially disregarded the
legislative mandate of a timely filing.
An additional problem in the refusal to hire cases is that the systemic theory
is not uniformly applied. The Southern District of New York, for example,
which decided Kohn, subsequently in Rosario v. New York Times Co. 62
refused to join as members of a class any applicants who could not show a
refusal to hire within 180 days of the EEOC filing. 63 In Rosario, the plaintiffs
had alleged an ongoing discriminatory hiring system as well as individual
discrimination directed against them. The court held that any claim under the
Act based upon discrimination in hiring is time-barred if not filed within 180
days of the refusal to hire. 64 The Rosario decision is a more logical
interpretation of the continuing violation theory, and it does not create a situation in
which the plaintiff's ability to sue is totally dependent on the defendant's
actions with respect to others. A refusal to hire is an isolated incident, and the
employer's continuing discrimination against other applicants should hold no
legal significance for the plaintiff who is suing.
In contrast to the refusal to hire cases, the courts have consistently held that
the systemic theory has no application in cases involving a discriminatory
discharge. Once the plaintiff has been discharged, there is no longer any
employment relationship, and the courts are in agreement that the mere status
to file, however, courts unfortunately have used the class action mechanism to allow suits by
time-barred plaintiffs or to include in the class employees who themselves would be unable to
bring suit. See notes 79-87 infra and accompanying text.
59. 59 F.R.D. at 518.
60. Id.; accord, Acha v. Beame, 570 F.2d 57 (2d Cir. 1978); Briggs v. Brown & Williamson
Tobacco Corp., 414 F. Supp. 371
(E.D. Va. 1976)
; Henden;on v. First Natl Bank, 344 F. Supp.
1373 (M.D. Ala. 1972).
61. "This method of enforcement makes an individual grievance the spearhead of an attack of
larger proportions, since the individual claimant takes on the mantle of the state in seeking to
rectify wrongs against himself and others." 59 F.R.D. at 519 (footnote omitted).
62. 10 Empl. Prac. Dec. 1 10,450 (S.D.N.Y. 1975).
63. Id. at 5948. The law in the Southern District of New York in this area is extremely
unclear. In Blank v. Sullivan & Cromwell, 418 F. Supp. I (S.D.N.Y. 1975), the court held that
the plaintiff was allowed to bring suit even though she filed her EEOC complaint more than 180
days after a refusal to hire because she alleged an ongoing discriminatory system. Id. at 4. In
1978, the court decided Ingram v. Madison Square Garden Center, Inc., No. 76-5870 (S.D.N.Y.
June 8, 1978), which cited and followed Kohn, while ignoring Rosario. Id., slip op. at 11.
64. 10 Empl. Prac. Dec. at 5948; accord, Smith v. Office of Economic Opportunity, 538
F.2d 226, 229 (8th Cir. 1976).
of unemployment after the discriminatory discharge is not sufficient to
constitute an ongoing violation. 65 As the Eighth Circuit noted:
While the continuing discrimination theory may be available to present employees....
we do not think this theory has validity when asserted by a former employee ...
[T]he date of discharge ...is the controlling date under the statute, and a charge of
employment discrimination must be timely filed in relation to that date.66
The reasoning of the courts in a discharge situation undermines the rationale
of Kohn and other similar cases. 67 Severance of the employment relationship
ends the discrimination. Whether it is severance through a refusal to hire or a
discharge, there is no continuing violation against the plaintiff, even if a
continuing discriminatory system exists.
Similarly, in a layoff situation, courts have refused to extend the continuing
violation concept beyond the present discrimination theory. Regardless of the
existence of a discriminatory system, the EEOC filing period begins to run on
the date of the layoff unless there has been a refusal to rehire or some other
"fresh" violation. 68 The layoff situation exemplifies what should be the
consistent rule with regard to all continuing violations. The plaintiff himself should
be discriminated against within 180 days of the filing of the EEOC charge in
order to be allowed to sue.
The application of the systemic theory to cases of alleged discrimination in
retirement benefits illustrates the inequitable distinctions that can be created
by the theory. The difference between a case of a discriminatory discharge
and a discrimination in retirement benefits is that, while the employment
relationship has been terminated in both cases, a retired employee is still
receiving pension payments from the employer. 69 Some courts have found this
65. See Collins v. United Air Lines, Inc., 514 F.2d 594, 596
(9th Cir. 1975)
; Terry v.
Bridgeport Brass Co., 519 F.2d 806, 808
(7th Cir. 1975)
; Tarvesian v. Carr Div. of TRW, Inc.,
407 F. Supp. 336, 339
(D. Mass. 1976)
; Rouse v. Gulf Oil Corp., 350 F. Supp. 178, 179 (E.D. Pa.
66. Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1234
(8th Cir. 1975)
67. See notes 57-61, 63 supra and accompanying text. The only possible distinction between a
refusal to hire and a discharge that may have influenced the Kohn court to find a sufficient
present effect was the assumption that the plaintiff may have still been waiting to be hired by the
employer-defendant, see 59 F.R.D. at 524 n.2, while a discharged employee normally would not
be waiting to be rehired. The distinction is a very fine one and does not explain the difference
between the Kohn and Rosario decisions, as the court in Kohn had no more evidence to justify
such an assumption than did the court in Rosario.
68. In such a case, there would be actual present discrimination against the plaintiff within
the EEOC filing period. See notes 47-52 supra and accompanying text. The courts generally agree
with the holding in Turner v. Seaboard Coast Line R.R. Co., 78 F.R.D. 654 (E.D.N.C. 1978),
that complaints not filed within 180 days of a layoff, absent some additional violation within the
filing period, should be dismissed, even when the plaintiff alleges a discriminatory system. "lAin
individual plaintiff may [not] rely on allegations of continuing discrimination in order to satisfy
the jurisdictional requirement that his claim be filed with the EEOC within the time limit
prescribed by law where it dearly appears that he has not been discriminated against personally
within the statutory period." Id. at 657; see cases cited note 52 iuprm.
69. The discharged employee may be receiving unemployment benefits, which come indirectly
from the employer, but no court has faced the question of whether this is sufficient to create an
distinction to be significant and have determined that this continuous receipt
of reduced payments is an ongoing effect that, when coupled with the
existence of a discriminatory system, is sufficient to invoke the systemic theory.70
In Mixson v. Southern Bell Telephone & Telegraph Co., 71 the widow of an
employee who had died at the age of fifty-nine alleged that she had been
denied an annuity benefit because of the employer's discriminatory practice of
fixing the retirement age at sixty for men and fifty-five for women. 72 The
plaintiff's husband had died in 1966, and she filed her EEOC charge in 1968.
The court held that her claim was timely because the discriminatory
retirement plan was still in effect at the time she filed her EEOC complaint. The
continued to maintain the unlawfMulrs.prMacitxicsoenatfofecsutiengbeoctahuesre etmheplodyeefeesn.d7a3nt
court stated that it was allowing
The Mixson case creates a distinction between plaintiffs that is solely based
upon the employer's conduct. A plaintiff in the same position as Mrs. Mixson
would be left with no remedy at all if his employer had since ceased the
discriminatory policy, or had never discriminated against others. The court in
McCarty v. Boeing Co. 74 applied the statute much more logically than did the
Mixson court, holding that the plaintiff was barred from suing when the
EEOC complaint was filed more than ninety clays after the retirement. 75 The
McCarty court reasoned that because retirement severs the employment
relationship, there can be no continuing violation once the plaintiffs retire2 6
The systemic theory is almost uniformly utilized in situations involving
discrimination against present employees. Although most of the present
employee cases involve a discriminatory refusal to promote, the same analysis
would apply to a discriminatory demotion or a transfer. The systemic theory
as applied to a discriminatory refusal to promote situation essentially
eliminates the need for an allegation of any subsequent refusal within the statutory
time period. 77 Under the theory, the employee simply alleges that there is an
ongoing discriminatory promotion system and, as long as he has not yet been
promoted, it will automatically be presumed that he is affected by the
70. See Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186, 1188 (7th Cir.), cert. denied, 404
U.S. 939 (1971); Dennison v. City of Los Angeles Dep't of Water & Power, 10 Empl. Prac, Dec.
10,356, at 5479 (C.D. Cal. 1975); American Fin. Sys., Inc. v. Harlow, 65 F.R.D. 94, 103 (D.
71. 334 F. Supp. 525 (N.D. Ga. 1971).
72. Id. at 526.
73. Id. at 527.
74. 321 F. Supp. 260
(W.D. Wash. 1970)
75. Id. at 261.
76. Id. Although the court acknowledged the existence of a continuing violation in some
limited cases, it stated that in the retirement situation "[the] acts were not continuing in nature
and plaintiffs' charge with the EEOC was not timely filed. To hold otherwise would disregard the
purpose of the statutory limitation, namely, to protect persons from being surprised through
revival of claims that have been allowed to slumber. . . . If such acts as here involved are
continuing, then aggrieved persons could well assert their claim fifteen, twenty, or thirty years
hence." Id. (footnote omitted).
77. This allegation is necessary under the present discrimination theory. See notes 42-46 supra
and accompanying text.
78. See Black Grievance Comm. v. Philadelphia Elec. Co., 79 F.R.D. 98, 112 (E.D. Pa.
Rich v. Martin Marietta Corp.7 9 is a classic illustration of the systemic
theory in the present employee situation. In Rich, the plaintiff alleged a
discriminatory refusal to promote him and, at the same time, challenged
the entire promotion system, maintaining that it continually operated so as to
keep him and other employees in a lower echelon. The court stated that the
continuing discriminatory system made the timeliness of the EEOC filing
"inconsequential." 80 Because the plaintiff was suing on behalf of a class, the
court allowed him to sue even though his EEOC filing was not timely.8 '
Although permitting the suit could bring an admirable result, an end to a
discriminatory system, in doing so the court allowed the plaintiff to
circumvent the jurisdictional prerequisite.
A liberal application of the systemic theory could permit suit by employees
against whom the employer has not discriminated. In lWetzel v. Liberty
Mutual Insurance Co., 82 a plaintiff requested promotion to a higher paying,
more prestigious position and was informed that the position was not open to
women. She made a timely filing with the EEOC and commenced a class
action alleging a discriminatory promotion system. 83 The court properly
permitted the plaintiff to sue, but, in determining the members of the class,84
the court held that the discriminatory promotion policies were "continuing
violations of Title VII and would allow a filing of a charge at any time by a
present employee," 85 in effect allowing all female employees to sue regardless
of any proof of actual discrimination against them. The court justified its
decision by arguing that all present employees were necessarily affected by the
ongoing system. 86 The court ignored the fact, however, that several female
employees had been promoted in other departments and were therefore not
actually affected. 87
Judicial use of the systemic theory is perhaps attributable to an
overambitious attempt to eliminate discriminatory systems. If the courts apply the time
1978); Stallings v. Container Corp., 75 F.R.D. 511, 5
15 (D. Del. 1977
); Briggs v. Brown &
Williamson Tobacco Corp., 414 F. Supp. 371, 377-78
(E.D. Va. 1976)
; Robinson v. Lorillard
Corp., 319 F. Supp. 835, 842
, modified, 444 F.2d 791 (4th Cir.), cert.
dismissed, 404 U.S. 1006 (1971).
79. 522 F.2d 333
(10th Cir. 1975)
80. Id. at 348.
81. Id. at 340.
82. 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011 (1975).
83. Id. at 244.
84. Employees were eligible to be members of the class even if they had not filed claims with
the EEOC, as long as they were presently eligible to file. Id. at 246; see note 58 supra.
85. 508 F.2d at 246.
87. Id. at 258. The court explicitly stated that the only employees barred from the claiss were
those who had left the employ of the defendant more than 210 days before the EEOC filing. The
210 day period was used because the plaintiffs had first instituted proceedings under state law.
Id. at 244; see note 5 supra. The court noted that certain employees had actually been promoted,
but did not consider this when it determined who was eligible to be a member of the class. It was,
therefore, permitting all present employees to sue when not all had been denied a promotion, or
were even eligible for a promotion within the filing period. Although one may argue that the suit
would have been brought with or without the additional members of the class, this is not
necessarily true. In fact, in Wetzel, there was an issue of whether the plaintiffs' class met the
numerosity requirement of a class action. Id. at 246.
limit to bar a plaintiff from bringing suit, however, they are not immunizing a
system from attack; it simply means that a particular plaintiff has not met the
statutory prerequisite of a timely filing. The system can still be challenged in a
variety of ways. Any employee who is being discriminated against pursuant to
the system can bring suit, either individually or in a class action. As long as
the suit is brought within 180 days of the discrimination against him, the suit
will properly be permitted to continue. In addition, the EEOC itself can file a
charge"8 and attempt to reach a conciliation agreement with the employer. If
it is unsuccessful in securing an agreement, it can bring a civil action just as a
private plaintiff can. 8 9 Thus, by discontinuing the use of the systemic theory,
the courts could promote a more consistent application of the statute without
insulating discriminatory systems from attack.
Prior to 1977, several courts had found that a continuing violation existed
when the plaintiff was still experiencing a present effect from a prior
discriminatory system that had since been discontinued. 90 The analysis used by the
courts was that present consequences rendered past discrimination continuing
in nature and therefore subject to timely challenge. 91 Unlike the present
discrimination and systemic theories, the present effects theory did not require
an act of discrimination against the plaintiff or anyone else within 180 days of
the EEOC filing, but required solely an effect within that period. The
Supreme Court's ruling in United Air Lines, Inc. v. Evans,92 however, seems to
have marked an end to the use of the present effects theory, indicating that
the concept of a continuing violation should be limited to situations of a
present discrimination within the EEOC filing period.
The present effects theory was primarily utilized in cases holding that a
nondiscriminatory employment system may nevertheless be subject to timely
challenge if it perpetuated discrimination that had occurred in the past. These
courts essentially held that an effect constituted a violation, a proposition for
which there was no statutory authority. For example, in Sagers v. Yellow
Freight System, Inc., 93 the defendant trucking company had previously
discriminated against blacks by excluding them from the position of road driver,
while allowing them to be employed at lower positions. At the time of the
plaintiffs' EEOC complaint, the employer had ceased his discriminatory
policy and was hiring blacks to be road drivers on an equal basis with all other
applicants. Several black employees who had then been hired to be drivers
brought suit claiming that they would have had higher seniority if they had
been hired when they first had applied for the job.94 The other plaintiffs, who
had previously been hired at lower positions, were suing because of the
employer's current neutral policy of prohibiting employees in other job
classifications from transferring into the road driver position. 95 Despite the
discontinuation of the discrimination long before the filing of the EEOC
charge, the court allowed the plaintiffs to bring suit, stating that the
company's current seniority lists and transfer policy served to perpetuate the past
discrimination. 96 The court reasoned that the employees were entitled to a full
remedy for the past discrimination. 97
The Sager decision typifies the problems created by the present effects
theory. Because the discrimination itself was not timely challenged, it is
questionable whether the plaintiffs should have later been allowed to complain
about the adequacy of the remedy. Permitting a suit in such a case ignores the
existence of a statutory filing period. Moreover, effects from prior
discrimination are often unavoidable. 98 Allowing an employer to be sued after it is no
longer discriminating serves to penalize the employer despite its efforts to
eliminate a discriminatory system.
The recent Supreme Court decision in Evans casts considerable doubt on
the future application of the present effects theory. In Evans, a flight
attendant for United Air Lines was forced to resign after her marriage in 1968,
pursuant to the company's "no marriage" policy. The policy was subsequently
ruled discriminatory in a case not involving the plaintiff, 99 and she then
sought reinstatement. She was finally rehired in 1972 without any of her old
seniority. One year later, she filed an EEOC complaint alleging that United's
seniority system in 1972 perpetuated the consequences of the prior
discrimination and thus constituted an ongoing violation.100 The Supreme Court held
93. 388 F. Supp. 507 (N.D. Ga. 1973).
94. Id. at 511.
96. Id. at 528.
97. Id. at 514-15.
98. For example, if an employer has consistently refused to hire qualified blacks for ten years,
there will necessarily be an effect on those unsuccessful applicants, many of whom may still be
unemployed. Once the employer ceases his discriminatory policy, however, he cannot then be
expected to hire all those whom he refused to employ in the past.
99. Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991 (1971).
100. 431 U.S. at 554. The plaintiff also alleged that she was treated less favorably than males
who had been hired prior to her re-employment. The court disposed of this allegation by stating
that women hired before she was rehired in 1972 had the same preference over her as did males;
therefore the disparity was not a consequence of her sex but rather of the date of her rehiring. Id.
that her claim was time-barred because she had not filed within the statutory
time period after the cessation of the discrimination, emphasizing that an
effect within the filing period without any actual discrimination was
insufficient to constitute a continuing violation:
[Tihe seniority system gives present effect to a past act of discrimination. But United
was entitled to treat that past act as lawful after respondent failed to file a charge of
discrimination within the 90 days then allowed by [the Act]. A discriminatory act
which is not made the basis for a timely charge ...is merely an unfortunate event in
history which has no present legal consequences. . . . United's seniority system does
indeed have a continuing impact on her pay and fringe benefits. But the emphasis
should not be placed on mere continuity; the critical question is whether any present
violation exists.' 0'
Thus, Evans held that an employment system that is otherwise neutral
does not constitute a violation of Title VII even though it precludes
elimination of an effect from prior discrimination. Evans relied on section 703(h) of
Title VII,10 2 which provides that different standards of compensation or
different terms and conditions of employment pursuant to a bona fide seniority
system are not a violation if there is no intent to discriminate. 103 Therefore,
the seniority system in Evans, which provided that all employees who were
rehired would not be credited with prior service, was not a violation of Title
VII. Although the system did serve to perpetuate an effect of the
discrimination that had caused the plaintiff's prior layoff, the Court held that in order
for a plaintiff to remedy that effect, the violation itself must be asserted
within the filing period.104
Cases subsequent to the Evans decision have followed its reasoning and
held that a presently neutral system does not give rise to a cause of action
even though it perpetuates the effects of prior discrimination. In Freude v.
Bell Telephone Co., 05 a retired employee claimed that her pension payments
constituted a violation of Title VII, even though the employer's pension plan
was neutral, because the amount was based on her previous discriminatory
salary.' 0 6 The court rejected her argument, stating that "it is plain that the
101. Id.at 558.
102. 42 U.S.C. § 2000e-2(h) (1976).
103. 431 U.S. at 559-60.
104. In International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), the
Supreme Court further defined its holding that a present effect does not constitute a present
violation. In Teamsters, the employer engaged in a systemwide pattern of discrimination in
hiring that was held to be a violation of Title VII. Id. at 342-43. The employer also maintained a
seniority system that the plaintiff alleged perpetuated the discrimination in hiring in that
employees who wanted to transfer to a position for which they were not originally hired because of
discrimination had to forfeit all seniority. The Court held that because the seniority system did
not have its genesis in racial discrimination, it was bona fide and therefore not a violation under
§ 703(h). Id. at 356. Under Teamsters, as well as Evans, therefore, a system is not discriminatory
merely because it perpetuates a discriminatory effect from a past violation.
105. 438 F. Supp. 1059 (E.D. Pa. 1977).
106. The plaintiff admittedly filed her EEOC complaint 13 months after her retirement,
but she alleged that the small pension payments constituted continuing discrimination. Id. at
basic holding of Evans is that a current nondiscriminatory policy will not
revive a time-barred act of discrimination even though such policy gives
present effect to the past act of discrimination."' 10 7 The Freude decision
hopefully indicates that the courts will continue to follow Evans and limit the
extension of the EEOC filing period to cases involving continuing violations,
not continuing effects.
The enactment of the Civil Rights Act of 1964 paved the way towards the
complete eradication of discrimination in employment. The Act, as well as
public policy, favors allowing employees who have been the victims of
discrimination to sue. When limited to cases of present discrimination, the
continuing violation theory is an appropriate judicial mechanism for liberalizing
the interpretation of Title VIi's statutory time limit. Although it facilitates
private suit by employees, it also continues to uphold the statutory mandate of
a timely filing with the EEOC. The systemic expansion on the continuing
violation theory, however, while attempting to achieve the worthy goal of
eradicating discriminatory systems, too frequently circumvents the statutory
mandate by allowing plaintiffs to sue even though they have not been
discriminated against within the filing period. The present effects theory is an
even greater expansion in that it allows plaintiffs to sue when there was no
violation at all within the filing period. By creating elements sufficient for a
timely charge other than that the plaintiff himself is discriminated against
within 180 days of the EEOC filing, the systemic and present effects theories
are simply judicial legislation.
Although the broad uses of the continuing violation theory should be
discontinued, they indicate a general feeling among the courts that 180 days is
often too brief a filing period, particularly for unsophisticated employees who
are frequently uninformed of their rights.108 One hundred and eighty days
may be an inadequate time for an employee to realize that he has a right to
complain and to find the proper channel for doing so. If he has been fired or
not hired, the discriminatee is probably concentrating his energies on seeking
other employment. If he is still employed, he may be hesitant to file an EEOC
claim immediately for fear of antagonizing his employer and may attempt first
to settle the matter privately with the employer, thereby allowing the EEOC
filing period to expire. In order to alleviate this problem, Congress should
extend the filing period to one year. A one year filing period would provide
employees with a greater opportunity to bring suit, thereby serving the
compensatory objectives of the Act,10 9 and promote the eradication of
employment discrimination. At the same time, employers still would be protected
107. Id. at 1061. Other courts seem to have similarly adopted the Evans holding. See Smith
v. American Presidents Lines, Ltd., 571 F.2d 102, 105-06 (2d Cir. 1978); Cates v. Trans World
Airlines, Inc., 561 F.2d 1064, 1069-70 (2d Cir. 1977).
108. This concern was also expressed by Congress when it extended the filing period from 90
to 180 days. See note 31 supra.
109. See note 7 supra.
from stale complaints. 110 Moreover, by facilitating employees' suits, a one
year time limit would alleviate the need for unwarranted expansions of the
continuing violation theory and be a first step towards eliminating the
confusing and contradictory case law in this area.
Janis Roney Edinburgh
10. See pt. H(B) infra.
11. See pt. II(C) infra .
12. Courts are by no means uniform in categorizing the various types of continuing violations. The concept that the continuing violation theory itself may be broken down into three basic theories is taken in part from B . Schlei & P. Grossman, supra note 3, at 894-908.
13. Civil Rights Act of 1964 , Pub. L. No. 88 - 352 , 78 Stat. 241 (codified at 42 U.S.C. §§ 2000a to 2000h- 6 ( 1976 )).
14. Id . § 706 (d) (current version at 42 U.S.C. § 2000e- 5 (e) ( 1976 )).
15. The legislative history of the Act has been charitably described as "chaotic." Hall v. Werthan Bag Corp ., 251 F. Supp . 184 , 186 (M.D. Tenn . 1966 ). See generally Vans , Title VII : Legislative History, 7 B.C. Indus . & Com . L. Rev. 431 ([ 966 ). Although the purpose of the time limit is not dearly ascertainable from the congressional debates concerning the Act, some commentators have indicated that it was the result of a political compromise. The Act was "born in the House [and] transfigured on the floor of the Senate by those who wished to save [it] from an otherwise certain death. [It] is the result of a political compromise, a product more of the desire for passage than the desire for a rational scheme for uprooting discrimination .... [ Clourts must [therefore] wrestle with the language and construe the provisions in light of what appear to be the broad purposes of [the] Act." Note, Discrimination In Employment and in Housing: Private Enforcement Provisions of the Civil Rights Acts of 1964 and 1968, 82 Harv. L. Rev . 834 , 835 ( 1969 ) (footnote omitted); see Hill, The Equal Employment Opportunity Acts of 1964 and 1972: A CriticalAnalysis of the LegislativeHistory andAdministration of the Law, 2 Indus . Rel. L.J. 1 , 7 ( 1977 ) (describing the Act as the result of tortuous congressional compromises).
16. "Congress, in placing the various time limitations in Title VII, was attempting to eliminate the problem of ... stale complaints .... [T] he time limitation is meant to penalize only those who sleep on their rights .... " Culpepper v . Reynolds Metals Co., 421 F.2d 888 , 892 (5th
25. Id . at 891. In Culpepper, the court held that the time limit was tolled while a black employee invoked contractual grievance remedies in an effort to settle his complaint of alleged racial discrimination in promotion. Id. Culpepper's holding that the time limit was tolled was an example of a court treating the time limit as a statute of limitations, rather than as a jurisdictional prerequisite . See note 3 supra. Culpepper was implicitly overruled in International Union of Elec. Radio & Mach. Workers Local 790 v. Robbins & Myers, Inc., 429 U.S. 229 ( 1976 ), in which the Supreme Court held that Title VII's remedies were independent of any grievance procedure provided in a collective bargaining agreement, and thus the filing period was not tolled when the plaintiff sought to invoke his contractual remedies first . Id. at 236-40.
26. 316 F. Supp . 292 (M.D.N .C. 1970 ).
27. The employer consistently laid off women while retaining men who performed the same jobs and had less seniority . Id. at 294.
28. Id . at 296-97.
29. Id . at 296; accord, Marquez v. Omaha Dist. Sales Office, Ford Motor Co., 440 F.2d 1157 , 1159 - 60 ( 8th Cir . 1971 ); United States v . Dillon Supply Co., 429 F.2d 800 , 804 ( 4th Cir . 1970 ); Griggs v . Duke Power Co., 420 F.2d 1225 , 1236 ( 4th Cir . 1970 ), rev'd on other grounds , 401 U.S. 424 ( 1971 ); Local 189, United Papermakers v . United States , 416 F.2d 980 , 990 - 91 ( 5th Cir . 1969 ), cert. denied, 397 U.S. 919 ( 1970 ).
30. Hutchings v. United States Indus., Inc., 309 F. Supp . 691 , 693 (E.D. Tex . 1969 ), revd on other grounds, 428 F.2d 303 ( 5th Cir . 1970 ) ; accord, Payne v . Ford Motor Co. , 334 F. Supp . 172 , 175 (E.D. Mo . 1971 ), rev'd on other groynds, 461 F.2d 1107 ( 8th Cir . 1972 ); Younger v . Glamorgan Pipe & Foundry Co. , 310 F. Supp . 195 , 197 (W.D. Va . 1969 ); Fore v. Southern Bell Tel . & Tel . Co., 293 F. Supp . 587 , 587 (W.D.N .C. 1968 ).
31. Equal Employment Opportunity Act of 1972 , Pub. L. No. 92 - 261 , § 4 (e), 86 Stat. 105 ( 1972 ) (codified at 42 U .S.C. § 2000e- 5 (e) ( 1976 ) ) . In extending the filing period, Congress stated that its purpose was to provide potential plaintiffs with a greater opportunity to file Title VII
34. B. Schlei & P. Grossman, supra note 3, at 900.
35. See note 32 supra and accompanying text .
36. Acha v. Beame , 570 F.2d 57 , 65 ( 2d Cir . 1978 ); Egelston v . State Univ. College , 535 F.2d 752 , 755 ( 2d Cir . 1976 ); Macklin v. Spector Freight Sys ., Inc., 478 F.2d 979 , 987 (D.C. Cir . 1973 ).
37. See Cox v . United States Gypsum Co., 409 F.2d '89 , 290 ( 7th Cir . 1969 ); Rosario v . New York Times Co., 10 Empl. Prac. Dec. 10 , 450 , at 5948 ( S.D.N .Y. 1975 ), discussed at notes 62-64 infra and accompanying text.
38. See Cates v . Trans World Airlines, Inc., 561 F.2d 1064 , 1068 ( 2d Cir . 1977 ) (refusal to hire); Greene v . Carter Carburetor Co., 532 F.2d 125 , 126 ( 8th Cir . 1976 ) (discriminatory discharge); Terry v . Bridgeport Brass Co., 519 F.2d 806 , 807 ( 7th Cir . 1975 ) (same); Olson v . Rembrandt Printing Co., 511 F.2d 1228 , 1234 ( 8th Cir . 1975 ) (same); Molybdenum Corp . v. EEOC , 457 F.2d 935 , 936 ( 10th Cir . 1972 ) (refusal to hire); Higginbottom v . Home Centers , Inc., 10 Empl. Prac. Dec. $ 10 ,337, at 5373 (N.D. Ohio 1975 ) (discriminatory discharge); Phillips v . Columbia Gas , Inc., 347 F. Supp . 533 , 537 - 38 (S.D. W. Va. 1972 ) (same), aff'd mem ., 474 F.2d 1342 ( 4th Cir . 1973 ); Burney v . North Am. Rockwell Corp ., 302 F. Supp . 86 , 92 -93 (C.D. Cal . 1969 ) (same).
39. 522 F.2d 397 ( 2d Cir . 1975 ).
40. One plaintiff filed her EEOC charge 17 months after her termination, while the other waited almost three years before filing . Id. at 402-03.
47. See Griffin v. Pacific Maritime Ass'n, 478 F.2d 1118 , 1120 (9th Cir.), cert. denied, 414 U.S. 859 ( 1973 ); Cisson v. Lockheed-Georgia Co ., 392 F Supp . 1176 , 1182 (N.D. Ga . 1975 ); Loo v . Gerarge , 374 F. Supp . 1338 , 1340 (D. Hawaii 1974 ). Sciaraffa v . Oxford Paper Co., 310 F. Supp . 891 , 896 (D. Me . 1970 ); Burney v . North Am. Rockwell Corp ., 302 F. Supp . 86 , 92 (C.D. Cal . 1969 ).
48. 409 F.2d 289 ( 7th Cir . 1969 ).
49. Cox was decided prior to the 1972 amendments to the Act that increased the filing period from 90 to 180 days. See note 31 supra and accompanying text. Cox is the seminal continuing violation case involving layoffs; in fact, it is one of the most frequently cited cases in the entire continuing violations area . See, e.g., Williams v . Norfolk & Western Ry., 530 F.2d 539 , 542 ( 4th Cir . 1975 ); Weise v . Syracuse Univ., 522 F.2d 397 , 410 n. 20 ( 2d Cir . 1975 ); B. Schlel & P. Grossman, supra note 3, at 898; Developments in the Law' , Employment Discriminationand Title VII of the Civil Rights Act of 1964 , 84 Harv. L. Rev. 1109 , 1211 n. 101 ( 1971 ).
50. 409 F.2d at 290. The other three plaintiffs merely referred to the discrimination as "continuing." Id.
51. Id . The court was interpreting the allegation by the other three plaintiffs that the discrimination was continuing to mean that there was recurrent failure to rehire these plaintiffs as well as the other two .
52. Id . at 290-91; accord, Macklin v. Spector Freight Sys., Inc., 478 F.2d 979 , 987 (D.C. Cir . 1973 ); Richard v. McDonnell Douglas Corp., 469 F.2d 1249 , 1253 ( 8th Cir . 1972 ); Sclaraffa v . Oxford Paper Co., 310 F. Supp . 891 , 896 (D. Me . 1970 ).
53. Indeed , it would be difficult to envision an employer establishing a pension plan that offers different benefits to retired employees based solely on their race or sex. Such blatant discrimination would invite a Title VII action .
54. See Freude v. Bell Tel . Co., 438 F. Supp . 1059 , 1061 (E.D. Pa . 1977 ) ; McCarty v . Boeing Co., 321 F. Supp . 260 , 261 (W.D. Wash . 1970 ). Some courts have found a continuing violation after retirement, however, under the systenic theory . See notes 70-73 itnfra and accompanying text.
88. 42 U.S.C. § 2000e- 5 (b) ( 1976 ), discussed at note 4 supra.
89. Id . § 2000e - 5 (f). This provision was added by the Equal Employment Opportunity Act of 1972, Pub . L. No. 92 - 261 , § 4 ( f ), 86 Stat. 105 ( 1972 ). The Attorney General may also bring a civil action whenever he has reasonable cause to believe that there exists a pattern or practice of discrimination . 42 U.S.C. § 2000e- 6 ( a ) ( 1976 ).
90. One court also applied the theory in a case of isolated discrimination against a particular plaintiff . In Marquez v. Omaha Dist. Sales Office, Ford Motor Co., 440 F.2d 1157 ( 8th Cir . 1971 ), the plaintiff had been refused a promotion in 1956, and 15 years later filed a charge protesting a current failure to promote. The court held that although there was no discrimination in the recent refusal to promote because he was not qualified to perform the job, the reason he was not qualified was the past discrimination and that, therefore, the present discriminatory effect gave rise to an actionable present violation . Id. at 1163
91. Williams v. Norfolk & W. Ry., 530 F.2d 539 , 542 ( 4th Cir . 1975 ) (plaintiffs who had been denied seniority following a company merger could file a timely charge many years later); Local 189, United Papermakers v . United States , 416 F.2d 980 , 991 ( 5th Cir . 1969 ), cert. denied, 397 U.S. 919 ( 1970 ); Kennan v . Pan Am. World Airways, Inc , 424 F. Supp . 721 , 728 (N.D. Cal . 1976 ); Tippett v . Liggett & Myers Tobacco Co. , 316 F. Supp . 292 , 295 (M.D.N .C. 1970 ), discussed at notes 26-29 supra and accompanying text.
92. 431 U.S. 553 ( 1977 ), discussed at notes 99-104 infra and accompanying text.
110. Indeed , it would still be shorter than most statutes of limitations in tort and contract law . See, e.g., N.Y. Civ . Prac. Law §§ 213 ( 2 ), 214 ( 5 ) (McKinney 1972 & Supp . 1978 ).