Employer Religious Accomodations

acts of discrimination, including written counselings, denial of career opportunities, termination, and racial slurs. Since private sector EEO procedures apply to Amtrak, Morgan had 300 days from an act of discrimination to file a charge. The district court held that Morgan could not recover for acts outside of the limitations period. The Ninth Circuit reversed, finding that all of Morgan's claims were timely, reasoning that the "pre-limitations conduct at issue in this case is sufficiently related to the post-limitations conduct to invoke the continuing violation doctrine." 232 F.3d 1008, 1016 (9th Cir. 2000). Based upon this "sufficiently related" test, the circuit held that all of Morgan's untimely claims, whether adverse personnel actions or acts that contributed to a hostile workplace, were actionable. The Supreme Court rejected this analysis, observing that timeliness must be analyzed separately for discrete discriminatory acts and hostile work environment claims. Morgan , 536 U.S. at 109-10. As for discrete discriminatory acts, the Court held that, based upon the plain language of Title VII, the continuing violation doctrine cannot save untimely employment actions. The statute refers to an "unlawful employment practice," and "[t]here is simply no indication that the term 'practice' converts related discrete acts into a single unlawful practice for the purposes of timely filing." Id. at 110. Each discrete act and retaliatory adverse action is a separate wrong within the meaning of the statute. Id. at 114. Based upon Morgan , a federal employee must contact an EEO counselor within forty-five days of each discriminatory personnel action. Turning to the hostile work environment claim, the Court held that a plaintiff may rely upon acts outside of the limitations period so long as that conduct is part of an actionable hostile workplace that continues into the filing period. The Court again based this result on the language of the statute, noting that a "hostile work environment claim is comprised of a series of separate acts that collectively constitute one 'unlawful employment practice.' . . . It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period." Id. at 117. After Morgan , plaintiffs essentially retain the benefit of the continuing violation doctrine in hostile environment cases, but not because of equity, the basis previously relied upon by some courts. Instead, a plaintiff may rely upon acts outside of the limitations period because of the plain meaning of an "unlawful employment practice" in the statute.

Lower courts have consistently applied these basic rules, and the fundamental timeliness analysis of Morgan appears well accepted. Moving beyond the central holding of that decision, however, there are certain devils in the details that are not so easily applied. After an overview of Morgan , this article will consider three areas where plaintiffs will continue to raise time-barred acts in support of their cases. The first area concerns the issue of timeliness in the context of a pattern-or-practice case challenging discrete discriminatory acts. While holding that discrete acts are barred unless challenged within the applicable limitations period, Morgan expressly left open the issue of timeliness in pattern-or practice cases. Id. at 115, n.9. Plaintiffs have already latched onto that open question, framing their allegations as pattern-or-practice cases in an effort to save untimely allegations. So far, this argument has been rejected by several Courts of Appeal. The second question concerns the evidentiary use of time-barred discrete acts. Morgan observed that untimely discrete employment decisions, although not independently actionable, may serve as relevant background evidence. Id. at 113. Given this observation, the Ninth Circuit has already ruled that time-barred acts may be considered on summary judgment as evidence of pretext. As such, while a defendant may succeed in dismissing an untimely discrete act, evidence of that claim may still be used by the plaintiff to create a triable issue as to timely claims. After Morgan , a defendant must consider making a motion to strike any time-barred acts that a plaintiff may reassert under the guise of "background evidence." Finally, faced with untimely discrete acts, plaintiffs may try to save those claims by wrapping them into a timely hostile workplace claim. This strategy appears foreclosed by language in Morgan . Nevertheless, what remains unclear is how the constellation of facts that accompany a discrete act might play into a hostile workplace claim, such as a gender-based comment or other abusive act by a supervisor that occurred concomitantly with a denied promotion or disciplinary act. While the plaintiff is not entitled to relief for the time-barred discrete act, the events surrounding that act may well be part of the evidence of the hostile workplace. II. Synopsis of the Morgan decision Morgan was hired by Amtrak in 1990. He filed a charge of discrimination on February 27, 1995, alleging retaliation, race discrimination, and harassment. Morgan's complaint identified various

UNITED STATES ATTORNEYS ' B ULLETIN

M AY 2004

29