Employees must file a charge with the EEOC within 180 days of the alleged violation. If a charge is first filed with the Civil Rights Department (CRD), then a charge can be filed with the EEOC within 300 days or within 30 days of receiving notice that the state terminated its proceedings, whichever is earlier.

In applying these time limits, the U.S. Supreme Court distinguished between cases that allege separately identifiable acts of discrimination and cases that allege the creation of a hostile work environment. Time limits are strictly enforced when a single act, such as discharge, failure to promote or refusal to hire, is alleged to be discriminatory. Conversely, if the cumulative effect of a series of incidents over a period of weeks or years created a hostile work environment, liability exists if at least one of the events occurred within the applicable time limit.1

If you are found to have engaged in an employment practice that is unlawful under Title VII, you can be required to, among other things:

• Hire an applicant for employment who was unlawfully denied a job.
• Reinstate an employee who was unlawfully discharged.
• Pay back wages and other benefits that an employee or applicant lost as a result of your unlawful employment practice.
• Pay the prevailing employee’s or applicant’s costs and attorneys’ fees.
• Pay compensatory damages, including damages for emotional injuries.

Class Action Discrimination Lawsuits

Class action litigation has been on the rise in recent years. An employee who feels that they have been discriminated against may attempt to join other employees into one lawsuit against the employer. To bring a class action lawsuit, the employee must have the class “certified.” To certify the class, the employee must show commonality of the claims — that there are common questions of law or fact amongst all the employees in the potential class that are capable of class-wide resolution.

Class action litigation is costly and time consuming. If the plaintiffs succeed in getting the class certified, then the employer must defend claims from tens, hundreds, or even thousands of employees in a single lawsuit. In one of the most expansive class actions ever, plaintiffs tried to create a class of 1.5 million employees in their gender discrimination case against Wal-Mart, claiming Wal-Mart paid women less than men and gave women fewer promotions than men.

The case went to the United States Supreme Court on the issue of whether 1.5 million women could bring their claims against the company in a single class action lawsuit. The Court ruled that the large class of employees from stores nationwide did not share common questions that could be resolved in a single class action suit. The lawsuit was too large and the claims too varied to be certified.2

Employers often settle class action claims because of the high cost of defending such claims and the uncertainty involved.

Franchisee Cannot Sue for Employment Discrimination

In Adcock v. Chrysler Credit Corporation, the Ninth Circuit Court of Appeals ruled that an individual who is denied a franchise cannot sue for employment discrimination. After Chrysler Credit Corporation refused to award her an automobile dealership, Sherrie Ann Adcock filed a lawsuit alleging sex discrimination under Title VII. The court found that Chrysler and Adcock contemplated an “independent contractual affiliation” rather than an “employment relationship.”3

However, if the franchisor exercises control over the franchisee’s day-to-day operations, franchisor liability may exist.

For information on franchisor liability in harassment cases, see ”Franchisor Liability for Sexual Harassment” in Liability.

Employers Liable for Inaction by Supervisors

In Swinton v. Potomac Corp., the Ninth Circuit Court of Appeals upheld an award to an employee who was subjected to repeated racial slurs in the presence of a supervisor who did nothing to stop or report the incident to higher management. This case was decided under the Civil Rights Act of 1866, 42 U.S.C. 1981 and a state civil rights statute. As with claims brought under FEHA, there is no cap on damages, which permitted a jury to award $1 million in damages along with $5,612 in back pay and $30,000 for emotional distress.

The company published a policy forbidding discrimination, indicating that supervisors should be responsible to receive and act upon complaints. The court concluded that despite the policy’s existence, the company was liable for punitive damages where the inaction of even low-level supervisors permits the unlawful conduct to continue.

The court rejected the employer’s request to reduce the amount of punitive damages because of actions the employer took after litigation began. The court said that evidence of employer action upon learning of a complaint could be presented at trial as a factor to be considered when awarding punitive damages, but the court refused in this case, saying that the company’s actions were too little too late.4

• The court’s opinion emphasizes the importance of giving supervisors the training and authority to deal with discrimination. Supervisors must be held accountable for maintaining a workplace free of harassment. They must report incidents of harassment to management whenever they observe it. The court’s comments encourage employers to take prompt action upon learning that a supervisor failed in these responsibilities in an effort to reduce the size of a punitive damage award.

Civil Rights Act Provisions Extend Time to Sue

The U.S. Supreme Court ruled that the time limit for bringing a lawsuit under 42 U.S.C. Sec. 1981 of the Civil Rights Act of 1866 is governed by federal law rather than the state personal injury statute of limitations. Thus, claimants can take four years to file a claim alleging racial discrimination under this law.

In addition, in Johnson v. Lucent Technologies, Inc., a federal court held that the time limit for bringing a retaliation lawsuit under section 1981 is four years.5

1. National Railroad Passenger Corporation v. Morgan, 122 S.Ct. 2061 (2002)