No. 00-1614 

In the Supreme Court of the United States 

NATIONAL RAILROAD PASSENGER CORPORATION, 
PETITIONER 

v. 

ABNER MORGAN, JR. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONER 

THEODORE B. OLSON 

Solicitor General 

Counsel of Record 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

PAUL D. CLEMENT 

Deputy Solicitor General 

AUSTIN C. SCHLICK 

Assistant to the Solicitor 

General 

MARLEIGH D. DOVER 
JOHN C. HOYLE 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether the court of appeals erred in holding that a 
plaintiff may recover under Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. 2000e et seq., for unlawful employment 
practices that are outside the statutory charge-filing period, 
if the practices were “sufficiently related” to unlawful prac- 
tices that occurred within the period. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 

9 

Argument: 

A Title VII claimant may recover for a violation 
that occurred within the charge-filing period despite 
earlier notice of the unlawful employment practice, 
but may not recover for a violation that occurred 
outside the charge-filing period .......................................... 

11 

A. Title VII violations that continue into the 
charge-filing period remain actionable despite the 
claimant’s prior notice of the violation .......................... 
11 

B. Neither caps on back pay nor damages provisions 
demonstrate that Congress intended to allow 
recovery for unlawful practices that occurred 
outside the charge-filing period ..................................... 
22 

C. Respondent may not recover for discrimination 
that occurred outside the 300-day charge-filing 
period .................................................................................. 26 

Conclusion ....................................................................................... 28 

TABLE OF AUTHORITIES 

Cases: 

Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 
483 U.S. 143 (1987) ................................................................ 
12 

Albemarle Paper Co. v. Moody, 422 U.S. 405 
(1975) ........................................................................................ 
13, 19 

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 
(1946) ........................................................................................ 26 

Anderson v. Reno, 190 F.3d 930 (9th Cir. 1999) .............. 

7 

Anisman v. O’Neill, Appeal No. 01994634, 2001 WL 
402493 (EEOC Apr. 12, 2001) ............................................. 
23 

Baldwin County Welcome Ctr. v. Brown, 446 U.S. 
147 (1984) ................................................................................. 
21 

Bazemore v. Friday, 478 U.S. 385 (1986) .......................... 17 

(III) 

IV 

Cases—Continued: Page 

Berry v. Board of Supervisors of L.S.U., 715 F.2d 
971 (5th Cir. 1983) ........................................................... 
8, 22-23 

Bowen Prods. Corp., 113 N.L.R.B. 731 (1955) .................... 
15 

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 
(1998) ........................................................................................ 19 

Cada v. Baxter Healthcare Corp., 920 F.2d 446 
(7th Cir. 1990), cert. denied, 501 U.S. 1261 (1991) ........... 

21, 22 

Culpepper v. Reynolds Metals Co., 296 F. Supp. 
1232 (N.D. Ga. 1968), rev’d in part on other 
grounds, 421 F.2d 888 (5th Cir. 1970) ................................ 
17 

Dasgupta v. University of Wis. Bd. of Regents, 121 

F.3d 1138 (7th Cir. 1997) ...................................................... 

20 

Delaware State College v. Ricks, 449 U.S. 250 
(1980) ........................................................................................ 
18, 20 

EEOC v. Shell Oil Co., 466 U.S. 54 (1984) ........................ 
19 

FTC v. Cement Inst., 333 U.S. 683 (1948) ......................... 
27 

Fielder v. UAL Corp., 218 F.3d 973 (9th Cir. 
2000), petition for cert. pending, No. 00-1397 (filed 
Mar. 7, 2001) ............................................................................ 
7-8 

Franks v. Bowman Transp. Co., 424 U.S. 747 
(1976) ........................................................................................ 14 

Frazier v. Delco Elecs. Corp., No. 99-2710, 2001 WL 
964933 (7th Cir. Aug. 24, 2001) ............................................ 

20 

Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374 
(7th Cir. 2000) ......................................................................... 
20 

Galloway v. General Motors Serv. Parts Operations, 
78 F.3d 1164 (7th Cir. 1996) ................................................. 
6 

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ................ 
19 

Hanover Shoe, Inc. v. United Shoe Mach. Corp., 
392 U.S. 481 (1968) ................................................................ 
12 

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) .............. 
27 

Havens Realty Corp. v. Coleman, 455 U.S. 363 
(1982) ................................................................................ 
18, 19, 20 

Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001) .............. 
20 

Jamison v. Olga Coal Co., 335 F. Supp. 454 
(S.D. W. Va. 1971) .................................................................. 16 

V 

Cases—Continued: Page 

Johnson v. Goodyear Tire & Rubber Co., 349 

F. Supp. 3 (S.D. Tex. 1972), rev’d in part, 491 F.2d 
1364 (5th Cir. 1974) ................................................................ 
24 

Johnson v. Nyack Hosp., 891 F. Supp. 155 
(S.D.N.Y. 1995), aff ’d, 86 F.3d 8 (2d Cir. 1996) ................ 
22 

Katz v. NLRB, 196 F.2d 411 (9th Cir. 1952) ..................... 
14 

Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997) ............... 
12 

Local Lodge No. 1424, Int’l Ass’n of Machinists v. 

NLRB (Bryan Mfg.), 362 U.S. 411 (1960) ........................ 

12, 15 

Lorance v. AT&T Techs., Inc., 490 U.S. 900 
(1989) ......................................................................... 
13, 14, 17, 18 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 
475 U.S. 574 (1986) ................................................................ 
3 

Melville Confections, Inc., 142 N.L.R.B. 1334 (1963), 
enforced, 327 F.2d 689 (7th Cir.), cert. denied, 377 
U.S. 933 (1964) ........................................................................ 
14-15 

Minor v. Ivy Tech State College, 174 F.3d 855 
(7th Cir. 1999) ......................................................................... 
27 

Mixson v. Southern Bell Tel. & Tel. Co., 334 

F. Supp. 525 (N.D. Ga. 1971) ................................................ 

17 

Mohasco Corp. v. Silver, 447 U.S. 807 (1980) ................... 
15 

NLRB v. Carpenters Local Union No. 1028, 232 

F.2d 454 (10th Cir.), cert. denied, 352 U.S. 839 
(1956) ........................................................................................ 14 

NLRB v. Dallas Gen. Drivers, Local Union 745, 
228 F.2d 702 (5th Cir. 1956), cert. denied, 361 U.S. 
814 (1959) ................................................................................. 

14 

NLRB v. F.H. McGraw & Co., 206 F.2d 635 (6th 

Cir. 1953) ................................................................................. 

14 

NLRB v. International Bhd. of Teamsters, 
225 F.2d 343 (8th Cir. 1955) ................................................. 
14 

NLRB v. Pennwoven, Inc., 194 F.2d 521 (3d Cir. 
1952) ......................................................................................... 15 

O’Rourke v. City of Providence, 235 F.3d 713 (1st 

Cir. 2001) ................................................................................. 8 

VI 

Cases—Continued: Page 

Order of R.R. Telegraphers v. Railway Express 

Agency, Inc., 321 U.S. 342 (1944) ....................................... 
21 

Oshiver v. Levin, Fishbein, Sedran & Berman, 
38 F.3d 1380 (3d Cir. 1994) ................................................... 
22 

Pennwoven, Inc., 94 N.L.R.B. 175 (1951), enforced, 
194 F.2d 521 (3d Cir. 1952) ................................................... 
15 

Pollard v. E.I. du Pont de Nemours & Co., 121 

S. Ct. 1946 (2001) ................................................................... 

14, 26 

Price Waterhouse v. Hopkins, 490 U.S. 228 
(1989) ........................................................................................ 26 

Sabree v. United Bhd. of Carpenters Local No. 33, 
921 F.2d 396 (1st Cir. 1990) .................................................. 

22, 23 

Sciaraffa v. Oxford Paper Co., 310 F. Supp. 891 
(D. Me. 1970) ........................................................................... 
16, 17 

Sowell v. Alumina Ceramics, Inc., 251 F.3d 678 
(8th Cir. 2001) ......................................................................... 
27 

Story Parchment Co. v. Paterson Parchment Paper 

Co., 282 U.S. 555 (1931) ....................................................... 

26 

Tippet v. Liggett & Myers Tobacco Co., 316 F. Supp. 
292 (M.D.N.C. 1970) .............................................................. 
17 

United Air Lines, Inc. v. Evans, 431 U.S. 553 
(1977) ......................................................................... 
17, 18, 24, 27 

United States v. Diebold, Inc., 369 U.S. 654 
(1962) ........................................................................................ 3 

United States v. Fresno Unified Sch. Dist., 592 

F.2d 1088 (9th Cir.), cert. denied, 444 U.S. 832 
(1979) ........................................................................................ 25 

United States v. Georgia Power Co., Civ. No. 12355, 
1971 WL 162 (N.D. Ga. June 30, 1971), rev’d in part, 
474 F.2d 906 (5th Cir. 1973) ................................................. 

24 

Van Steenburgh v. Rival Co., 171 F.3d 1155 (8th 

Cir. 1999) ................................................................................. 

27 

Watson v. Limbach Co., 333 F. Supp. 754 (S.D. 

Ohio 1971) ............................................................................ 

16, 17 

Wolin v. Smith Barney Inc., 83 F.3d 847 (7th Cir. 
1996) ......................................................................................... 21-22 

VII 

Cases—Continued: Page 

Zenith Radio Corp. v. Hazeltine Research, Inc., 
401 U.S. 321 (1971) ................................................................ 
12 

Zipes v. TWA, 455 U.S. 385 (1982) ............................... 
2, 13, 21 

Statutes and regulation: 

Page 

Civil Rights Act of 1964, Pub. L. No. 88-352, Tit. VII, 
78 Stat. 253 (42 U.S.C. 2000e et seq.) .............................. 
passim 

42 U.S.C. 2000e-5 (§ 706) ......................................... 
15, 23, 24 

42 U.S.C. 2000e-5(e) (§ 706(e)) .................................... 
passim 

42 U.S.C. 2000e-5(e)(1) ..................................................... 
2, 9 

42 U.S.C. 2000e-5(f) .......................................................... 
2, 6 

42 U.S.C. 2000e-5(g) (§ 706(g)) ............................. 
9, 10, 23, 25 

42 U.S.C. 2000e-5(g)(1) ............................................. 
10, 23, 24 

42 U.S.C. 2000e-6 (§ 707) .............................. 
2, 10, 23, 24, 25 

42 U.S.C. 2000e-6 note ..................................................... 
2 

42 U.S.C. 2000e-16 (1994 & Supp. V 1999) ................... 
2 

Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 
1071: 
§ 102, 105 Stat. 1072-1074 (42 U.S.C. 1981a) .......... 
1, 10, 25 

§ 112, 105 Stat. 1078-1079 (42 U.S.C. 2000e-5(e)(2)) ..... 
18 

Equal Employment Opportunity Act of 1972, Pub. L. 

No. 92-261, 86 Stat. 107 (42 U.S.C. 2000e-6(e)) ................ 

23 

Fair Housing Act, 42 U.S.C. 3604 .......................................... 
18 

National Labor Relations Act, ch. 372, § 10(b), 49 Stat. 
453-454 (29 U.S.C. 160(b)) ......................................... 

9, 13, 14, 16 

42 U.S.C. 1983 ............................................................................ 
20 

29 C.F.R. 1601.13 ...................................................................... 
2 

Miscellaneous: 

2 P. Areeda & H. Hovenkamp, Antitrust Law 
(rev. ed 1995) .......................................................................... 

12 
J. Carty, The Continuing Violation Theory of Title VII 
After United Air Lines, Inc. v. Evans, 31 Hastings 
L.J. 929 (1980) ......................................................................... 
24 

117 Cong. Rec. (1971): 

p. 31,973 ................................................................................... 

24 

p. 31,974 ................................................................................... 24 

VIII 

Miscellaneous—Continued: Page 

p. 31,979 ................................................................................... 

24 

p. 31,981 ................................................................................... 
24 

118 Cong. Rec. (1972): 

p. 4940 ...................................................................................... 

16 

p. 4941 ...................................................................................... 
16 

p. 7166 ...................................................................................... 
16 

p. 7167 ...................................................................................... 
16 

2 P. Cox, Employment Discrimination (3d ed. 
2000) ......................................................................................... 22 

1 F. Harper et al., The Law of Torts (3d ed. 
1996) ......................................................................................... 12-13 

H.R. Rep. No. 238, 92d Cong., 1st Sess. (1971) ................... 

16, 23 

18 W. Jaeger, Williston on Contracts (3d ed. 1978) ........... 
13 

D. Laycock, Continuing Violations, Disparate Impact 
in Compensation, and Other Title VII Issues, 49 
Law & Contemp. Probs. 53 (1986) ...................................... 
25 

2 B. Lindemann et al., Employment Discrimination 

Law (3d ed. 1996) ................................................................... 

22 

Note, Employment Discrimination and Title VII of 
the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109 
(1971) ........................................................................................ 24 

W. Prosser, Handbook of the Law of Torts (3d ed. 
1964) ......................................................................................... 13 

Restatement (Second) of Torts (1979) .................................. 

12 

S. Rep. No. 415, 92d Cong., 1st Sess. (1971) ......................... 16 

In the Supreme Court of the United States 

No. 00-1614 

NATIONAL RAILROAD PASSENGER CORPORATION, 
PETITIONER 

v. 

ABNER MORGAN, JR. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONER 

INTEREST OF THE UNITED STATES 

Title VII of the Civil Rights Act of 1964, Pub. L. No. 
88-352, 78 Stat. 253 (42 U.S.C. 2000e et seq.), prohibits em- 
ployment discrimination on the basis of race, color, religion, 
sex, or national origin, and authorizes equitable remedies 
against both public and private employers that discriminate. 
The Civil Rights Act of 1991, Pub. L. No. 102-166, § 102, 105 
Stat. 1072-1074 (42 U.S.C. 1981a), authorizes, in cases of in- 
tentional discrimination, the additional remedies of compen- 
satory damages and (in suits against private employers) 
punitive damages. The Attorney General of the United 
States shares responsibility for enforcing Title VII with the 
Equal Employment Opportunity Commission (EEOC). See 

(1) 

2 

42 U.S.C. 2000e-5(f), 2000e-6 & note. In addition, Title VII 
applies to the federal government in its capacity as the 
nation’s largest employer. 42 U.S.C. 2000e-16 (1994 & Supp. 
V 1999). 

This case concerns the timeliness of charges filed with 
the EEOC pursuant to Title VII. Petitioner challenges the 
court of appeals’ holding that a Title VII claimant who al- 
leges an unlawful employment practice that continued into 
the charge-filing period may recover even for violations that 
otherwise would be time-barred. The resolution of that issue 
will directly affect the government’s responsibilities for 
enforcing Title VII against private-sector and state and 
municipal employers, and implicates the remedies that may 
be awarded against the federal government as a Title VII 
defendant. 

STATEMENT 

1. Section 706(e) of Title VII provides that an employ- 
ment discrimination charge may be filed with the EEOC 
“within one hundred and eighty days after the alleged un- 
lawful employment practice occurred.” When there is a 
state fair employment practice agency with overlapping jur- 
isdiction (as is the case in most States), however, a charge 
may be filed with the EEOC “within three hundred days 
after the alleged unlawful employment practice occurred.” 
42 U.S.C. 2000e-5(e)(1). If a complainant submits a charge 
of discrimination to the EEOC based on employment prac- 
tices that occurred in such a State, the 300-day filing period 
applies and the EEOC refers the discrimination charge to 
the appropriate state or local agency for processing. See 29 
C.F.R. 1601.13. In Zipes v. TWA, 455 U.S. 385 (1982), this 
Court held that Section 706(e)’s requirement of filing a 
timely charge of discrimination with the EEOC operates as a 
statute of limitations. Id. at 392-398. 

3 

2. In August 1990, petitioner hired respondent, an 
African-American male, as an electrician’s helper at peti- 
tioner’s Oakland Maintenance Yard. Pet. App. 6a-7a, 26a. 
Respondent alleged that petitioner hired similarly qualified 
and less-qualified white workers as electricians at a higher 
rate of pay. Id. at 7a, 26a-27a; see 8/4/98 Pl.’s Opp’n to Mot. 
for Summ. J. 1.1 Respondent filed a union grievance, and 
he was reclassified as an electrician in April 1992. Pet. 
App. 26a. 

Respondent alleged that petitioner “continuously discrimi- 
nated against [him] during the entire time that he worked 
for [respondent] in violation of Title VII.” Compl. para. 7. 
Specifically, respondent claimed that in March 1991 he was 
discriminatorily disciplined and ultimately lost ten days of 
pay after he refused to attend a meeting with a supervisor 
without having a union representative present. Pet. App. 
7a, 27a-28a. Respondent also asserted that in August 1991 
he was denied an equal opportunity to be considered for ad- 
mission to petitioner’s apprenticeship program for em- 
ployees seeking to become electricians. Id. at 7a-8a, 28a. On 
October 4, 1991, respondent sent a letter complaining of race 
discrimination to petitioner’s Equal Employment Opportun- 
ity (EEO) office. Id. at 8a, 28a. On October 16, 1991, respon- 
dent received written counseling for ignoring a direct order 
to stop helping a co-worker. Ibid. Respondent protested the 
counseling as racially motivated. Ibid. 

In late 1991, respondent and other employees met with 
their congressional representative to complain about dis- 
crimination at the Oakland Maintenance Yard. Pet. App. 8a. 

1 The court of appeals in this case reversed the district court’s grant 
of partial summary judgment in favor of petitioner. See Pet. 6a, 21a. 
Accordingly, “inferences to be drawn from the underlying facts . . . must 
be viewed in the light most favorable to [respondent].” Matsushita Elec. 
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United 
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). 

4 

Shortly thereafter, respondent received counseling for being 
argumentative and threatening. Ibid. 

On September 17, 1992, respondent received counseling 
about absenteeism from Robert Vandenberg (the senior 
manager at the Oakland yard) and from another superior. 
Respondent asserted that some of the leave in question had 
been approved in advance. Pet. App. 8a, 28a; 8/4/98 Pl.’s 
Opp’n to Mot. for Summ. J. 3. In September and November 
1992 respondent was ordered to do clean-up work that was 
outside his job description. On December 1, 1992, respon- 
dent received written counseling for failing to fulfill the 
November assignment. Pet. App. 9a, 29a. 

On May 21, 1993, respondent asked Vandenberg why his 
name had been removed from a list of employees scheduled 
for training. Vandenberg allegedly responded that respon- 
dent lacked the mental capacity for the training. Pet. App. 
29a. On May 25, 1993, respondent filed a complaint with 
petitioner’s EEO office alleging racial discrimination and 
retaliation. On May 30, 1993, respondent filed another com- 
plaint with the EEO office. Id. at 9a-10a, 29a-30a. 

On July 14, 1993, petitioner suspended respondent for 15 
days for taking a day of leave without permission in May. 
After respondent filed a complaint with the EEO office and a 
grievance with his union, however, he was awarded back pay 
and the suspension was ordered expunged from his record. 
Pet. App. 9a, 29a-30a. 

In October 1993, respondent was charged with making im- 
proper remarks to a union representative. The charges were 
dropped after a hearing and the incident was ordered ex- 
punged from respondent’s file. Pet. App. 10a, 30a. Respon- 
dent offered testimony that Vandenberg had asked another 
employee to lie about the incident to support punishment of 
respondent, saying that respondent was “going to be fired 
anyway[].” Id. at 31a. Also in October 1993, respondent 
accused Vandenberg of pushing him. Respondent filed a 

5 

complaint with petitioner’s EEO office based on that inci- 
dent but he did not receive a response. Id. at 10a, 31a. 

In December 1993, respondent’s scheduled training was 
canceled. Respondent complained to the EEO office about 
the cancellation but he again received no response. Pet. 
App. 11a, 31a. 

In January 1994, respondent had a dispute with his super- 
visors about returning from sick leave. After respondent 
filed a grievance, petitioner paid him for three days of work 
that he lost as a result of the dispute. Pet. App. 11a, 31a-32a. 

On September 9, 1994, respondent was charged with a vio- 
lation of work rules for failing to complete a work assign- 
ment. After a hearing, respondent was suspended for 15 
days. Respondent alleged that petitioner did not discipline a 
white electrician who failed to finish a similar assignment 
given at the same time, and that his own suspension violated 
petitioner’s disciplinary policy. Pet. App. 11a, 32a-33a. In 
October 1994, respondent was again denied training, again 
complained to petitioner’s EEO office, and again received no 
response. Id. at 11a, 35a. 

On February 5, 1995, a foreman reported that respondent 
threatened him. Respondent alleged that a supervisor then 
told him to get his “black ass” into the supervisor’s office. 
Respondent refused to discuss the matter with the super- 
visor without a union representative and left work. After a 
hearing, respondent was terminated from his job because of 
that incident. Pet. App. 11a-12a, 33a-34a. 

In addition to the specific incidents discussed above, re- 
spondent alleged that employees and supervisors at the 
Oakland facility made racial jokes and derogatory comments 
and directed racial slurs and epithets at African-Americans. 
Pet. App. 12a. 

3. On February 27, 1995—before the hearing that 
resulted in termination of respondent’s employment— 
respondent filed charges against petitioner with the EEOC, 

6 

alleging discrimination and retaliation. Respondent also 
filed charges with the California Department of Fair Em- 
ployment and Housing. Pet. App. 13a, 36a-37a. On July 3, 
1996, the EEOC issued respondent a notice of right to sue. 
On October 2, 1996, respondent filed suit in the United 
States District Court for the Northern District of California. 
Id. at 13a, 37a; see generally 42 U.S.C. 2000e-5(f). In his 
complaint, respondent sought compensatory and punitive 
damages, reinstatement, back pay, front pay, expungement 
of records from his file, and attorney’s fees. Compl. 4-5. 

The district court granted in part and denied in part 
petitioner’s motion for summary judgment. Pet. App. 25a- 
52a. The district court held that, under Section 706(e) of 
Title VII, 42 U.S.C. 2000e-5(e), respondent could not recover 
for conduct that occurred before May 3, 1994 (300 days be- 
fore February 27, 1995, when respondent filed his charge 
with the EEOC). Pet. App. 38a-40a, 51a-52a. The district 
court found that respondent “believed as early as 1991 that 
[petitioner] and its managers were discriminating against 
him on the basis of his race and retaliating against him for 
his complaints,” and that throughout 1992, 1993, and 1994, 
respondent complained of discrimination and retaliation. Id. 
at 39a-40a. The district court also invoked Galloway v. 
General Motors Service Parts Operations, 78 F.3d 1164 
(1996), in which the Seventh Circuit held that a Title VII 
plaintiff may not recover for conduct that occurred outside 
the charge-filing period unless “it would have been 
unreasonable to expect the plaintiff to sue before the statute 
ran on that conduct, as in a case in which the conduct could 
constitute, or be recognized, as actionable * * * only in the 
light of events that occurred later, within the period of the 
statute of limitations.” Id. at 1167. Based on its factual 
findings and the reasoning of Galloway, the district court 
concluded that respondent’s claims for the period before May 
3, 1994, were time-barred because respondent’s awareness of 

7 

the alleged violations “triggered * * * [a] duty to assert his 
rights.” Pet. App. 38a-39a. The court emphasized, however, 
that its ruling only precluded respondent from recovering 
for acts before the limitations period. It did not entirely 
preclude respondent’s suit and respondent could “present[] 
evidence of acts that occurred prior to the limitations period 
if they are relevant to his timely claims of discrimination and 
retaliation.” Id. at 40a-41a n.9. 

The district court then rejected respondent’s allegations 
which, although timely, were not embraced within respon- 
dent’s EEOC charges. Pet. App. 41a-44a. The district court 
dismissed other timely claims because respondent failed to 
present facts that would support them. Id. at 49a-51a. But 
the district court allowed respondent to proceed to trial on 
claims relating to his September 1994 suspension for failing 
to complete a work assignment, the October 1994 cancella- 
tion of training, and the February 1995 discharge. Id. at 44a- 
49a, 52a. The jury returned a verdict for petitioner on each 
of those claims. Id. at 13a. 

4. The court of appeals reversed and remanded for a new 
trial because it concluded the “pre-limitations period conduct 
should have been presented to the jury not merely as back- 
ground information, but also for purposes [of] liability.” Pet. 
App. 21a. 

The court of appeals rested its decision on the continuing 
violation doctrine, which, it said, “allows courts to consider 
conduct that would ordinarily be time barred ‘as long as the 
untimely incidents represent an ongoing unlawful employ- 
ment practice.’ ” Pet. App. 14a (quoting Anderson v. Reno, 
190 F.3d 930, 936 (9th Cir. 1999)). The court of appeals rej- 
ected (id. at 14a-15a) the district court’s reliance on Gallo- 
way, stating that the Seventh Circuit’s approach was incon- 
sistent with Ninth Circuit cases that rejected “a strict notice 
requirement as the litmus test for application of the con- 
tinuing violation doctrine.” Id. at 15a; see Fielder v. UAL 

8 

Corp., 218 F.3d 973, 987 n.10 (9th Cir. 2000), petition for cert. 
pending, No. 00-1397 (filed Mar. 7, 2001). 

The court of appeals also rejected (Pet. App. 15a) the ap- 
proach to the continuing violation doctrine developed by the 
Fifth Circuit in Berry v. Board of Supervisors of L.S.U., 715 
F.2d 971 (1983), which several other circuits have followed, 
see O’Rourke v. City of Providence, 235 F.3d 713, 731 (1st 
Cir. 2001) (citing cases). In Berry, the Fifth Circuit 
identified factors that it deemed relevant to whether a Title 
VII plaintiff may recover for an occurrence outside the limi- 
tations period by virtue of its relationship to occurrences 
within the limitations period. One factor, “perhaps of most 
importance,” is whether the acts that occurred prior to the 
limitations period had a “degree of permanence” that should 
have put the plaintiff on notice of his claim. 715 F.2d at 981. 
The court of appeals in this case rejected consideration of 
that factor. In the Ninth Circuit, the court stated, the 
continuing violation doctrine applies “[e]ven though * * * a 
reasonable person would have been on notice” before the 
limitations period “that her rights were violated.” Pet. App. 
15a. 

The court of appeals concluded that the alleged violations 
of Title VII before May 3, 1994, were actionable because 
they were “sufficiently related to the post-limitations con- 
duct to invoke the continuing violation doctrine.” Pet. App. 
18a-21a. In addition, the court of appeals vacated the jury’s 
verdict in favor of petitioner on claims within the limitations 
period. Ibid. The court suggested (id. at 21a-22a) that the 
jury’s verdict might have been tainted by evidentiary rul- 
ings that arose from the district court’s exclusion of claims 
outside the limitations period. Accordingly, the court of 
appeals remanded for a new trial encompassing alleged 
violations both before and after the May 3, 1994, limitations 
date. 

9 

SUMMARY OF ARGUMENT 

1. As applied in antitrust, torts, and contracts, the con- 
tinuing violation doctrine allows a plaintiff to recover for a 
violation that occurs within the limitations period even if he 
knew or should have known of the defendant’s illegal course 
of conduct much earlier. There must, however, be an 
actionable violation within the limitations period, and the 
plaintiff may not recover for violations, even related ones, 
that occurred outside the limitations period. 

The plain language of Section 706(e)—which directs Title 
VII claimants to file their charges with the EEOC within 
either 180 days or 300 days “after the alleged unlawful 
employment practice occurred,” 42 U.S.C. 2000e-5(e)(1) 
—accords with the traditional continuing violation doctrine. 
That doctrine, moreover, has been applied under Section 
10(b) of the National Labor Relations Act (NLRA), ch. 372, 
49 Stat. 453-454 (29 U.S.C. 160(b)), which Congress used as 
its model for Title VII’s remedial provisions. And that doc- 
trine is consistent with this Court’s decisions applying 
Section 706(e), which allow recovery for discrimination that 
occurs within the charge-filing period despite earlier notice 
of the allegedly unlawful practice, but do not allow recovery 
for violations that occurred outside the charge-filing period. 

The traditional rule furthers the remedial purposes 
underlying Title VII and balances the interests of Title VII 
plaintiffs and defendants. Employers always have an 
incentive to comply with Title VII, because their ongoing 
violations remain actionable. Prohibiting recovery on pre- 
limitations claims, however, encourages potential plaintiffs 
to bring their claims promptly and protects employers 
against having to defend against stale claims. 

2. Nothing in Title VII is inconsistent with the tradi- 
tional continuing violation doctrine. Section 706(g), which 
provides that “[b]ack pay liability shall not accrue from a 

10 

date more than two years prior to the filing of a charge with 
the Commission,” 42 U.S.C. 2000e-5(g)(1), sets an outer limit 
on back pay but does not prohibit application of a limitations 
period of less than two years. The legislative history of 
Section 706(g) does not suggest that Congress meant to 
foreclose application of the traditional continuing violation 
rule. Finally, the two-year restriction is not surplusage even 
if recovery generally is limited to violations that occurred 
within the charge-filing period; the 300-day limitation may 
sometimes be equitably tolled, and it does not apply to 
suits by the Attorney General under Section 707, 42 U.S.C. 
2000e-6. There similarly is no inconsistency between the 
dollar caps that Congress placed on compensatory and 
punitive damages in Title VII cases, see 42 U.S.C. 1981a, and 
a temporal requirement restricting recovery to violations 
that occurred within the limitations period. 

3. The court of appeals’ holding in this case is incon- 
sistent with the traditional continuing violation doctrine. 
Contrary to the Ninth Circuit’s analysis, respondent may not 
recover for alleged violations that occurred outside the 300- 
day limitations period (i.e., before May 3, 1994), although 
those actions may be relevant evidence about respondent’s 
conduct during the limitations period. 

11 

ARGUMENT 

A TITLE VII CLAIMANT MAY RECOVER FOR A 
VIOLATION THAT OCCURRED WITHIN THE CHARGE- 
FILING PERIOD DESPITE EARLIER NOTICE OF THE 

UNLAWFUL EMPLOYMENT PRACTICE, BUT MAY NOT 
RECOVER FOR A VIOLATION THAT OCCURRED 
OUTSIDE THE CHARGE-FILING PERIOD 

A. Title VII Violations That Continue Into The Charge- 
Filing Period Remain Actionable Despite The Claim- 
ant’s Prior Notice Of The Violation 

A claimant’s prior notice of an ongoing Title VII violation 
does not deprive the claimant of the ability to recover for 
violations that continue into the charge-filing period. It is 
well-settled in antitrust, tort, and contract cases that a 
private plaintiff may recover for a violation that continues 
into the limitations period, even if the plaintiff knew or 
should have known of the illegal course of conduct much 
earlier and outside the limitations period. The text of Title 
VII and its legislative history are consistent with that 
traditional rule. Section 706(e) states simply that the po- 
tential plaintiff shall file any charge with the EEOC within 
180 or 300 days “after the alleged unlawful employment 
practice occurred.” 42 U.S.C. 2000e-5(e). Nothing in the 
language or history of Section 706(e) indicates that Congress 
intended to preclude suits that challenge ongoing violations. 
Accordingly, when an unlawful employment practice con- 
tinues into the applicable charge-filing period, the plaintiff 
may seek redress for that violation, without regard to when 
the plaintiff knew or should have known of the practice. 

1. In its usual form, the so-called continuing violation 
doctrine allows a suit that might otherwise be barred by the 

12 

statute of limitations to proceed, although the plaintiff may 
not recover for injury that occurred outside the limitations 
period. In the case of an ongoing antitrust violation, such as 
a price-fixing conspiracy, “ ‘each overt act that is part of the 
violation and that injures the plaintiff,’ e.g., each sale to the 
plaintiff, ‘starts the statutory [limitations] period running 
again, regardless of the plaintiff ’s knowledge of the alleged 
illegality at much earlier times.’ * * * But the commission 
of a separate new overt act generally does not permit the 
plaintiff to recover for the injury caused by the old overt acts 
outside the limitations period.” Klehr v. A.O. Smith Corp., 
521 U.S. 179, 189 (1997) (quoting 2 P. Areeda & H. 
Hovenkamp, Antitrust Law ¶ 338b, at 145 (rev. ed. 1995)); 
see Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 
481, 502 & n.15 (1968) (“Although Hanover could have sued 
[under the Sherman Act] in 1912 for the injury then being 
inflicted, it was equally entitled to sue in 1955” for damages 
within the limitations period.). The continuing violation doc- 
trine therefore provides that each successive illegal act 
resets the date at which the statute of limitations begins to 
run. See Zenith Radio Corp. v. Hazeltine Research, Inc., 
401 U.S. 321, 338-339 (1971).2 

A similar rule applies in tort law. See Restatement 
(Second) of Torts § 899, at 441-444, cmts. c, d (1979). In 
nuisance cases, for instance, “each day’s continuance of a 
temporary nuisance creates a new cause of action,” and, 
therefore, “the statute of limitations begins to run day by 
day, and plaintiff may at any time recover for the nuisance 
committed during the statutory period next before the 
bringing of the action.” 1 F. Harper et al., The Law of Torts 

2 Different limitations rules apply in criminal conspiracy cases. See 
Local Lodge No. 1424, Int’l Ass’n of Machinists v. NLRB (Bryan Mfg.), 
362 U.S. 411, 423-424 n.15 (1960); Agency Holding Corp. v. Malley-Duff & 
Assocs., Inc., 483 U.S. 143, 155-156 (1987) (RICO). 

13 

§ 1.30, at 1:139 (3d ed. 1996); see also W. Prosser, Handbook 
of the Law of Torts 616 (3d ed. 1964) (noting that “a con- 
tinuing trespass, such as the erection of a structure on the 
plaintiff’s land, affords a continuing cause of action, which 
can hardly be distinguished from nuisance”) (footnote omit- 
ted). 

So too, in contracts, the applicable statute of limitations 
generally begins to run as soon as each claim accrues, and 
the occurrence of similar or continuing breaches does not 
revive untimely claims. For instance, if performance is 
required in discrete parts over a period of time, and a timely 
action is not brought to challenge an initial breach, future 
recovery for the initial breach is barred, although recovery 
on later breaches that occurred within the limitations period 
is possible. See generally 18 W. Jaeger, Williston on 
Contracts §§ 2026-2029, at 782-817 (3d ed. 1978). 

Of particular relevance is the rule’s application under Sec- 
tion 10(b) of the National Labor Relations Act (NLRA), ch. 
372, 49 Stat. 453-454 (29 U.S.C. 160(b)). Just as other reme- 
dial provisions of Title VII were modeled on the NLRA, see 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 419 & n.11 
(1975), Section 706(e) has its origin in Section 10(b) of the 
NLRA. See Lorance v. AT&T Techs., Inc., 490 U.S. 900, 
909-910 (1989).3 This Court has held that the time limitations 
of Section 706(e) should be treated in the same manner as 
those contained in the NLRA. Zipes v. TWA, 455 U.S. 385, 
395 n.11 (1982). “Such reliance is particularly appropriate in 
the context presented here, since the highly unusual feature 
of requiring an administrative complaint before a civil action 

3 Section 10(b) of the NLRA provides, in relevant part, that “[n]o com- 
plaint shall issue based upon any unfair labor practice occurring more than 
six months prior to the filing of [a] charge with the [National Labor 
Relations] Board and the service of a copy thereof upon the person against 
whom such charge is made.” 29 U.S.C. 160(b). 

14 

can be filed against a private party is common to the two 
statutes.” Lorance, 490 U.S. at 909. And when interpreting 
Section 706(e), “reference must be made to actual operation 
and experience * * * in administering the [NLRA].” 
Franks v. Bowman Transp. Co., 424 U.S. 747, 774-775 n.34 
(1976); cf. Pollard v. E.I. du Pont de Nemours & Co., 121 S. 
Ct. 1946, 1950 (2001) (construction of NLRA Section 10(c) 
before enactment of Civil Rights Act of 1964 provides 
“guidance as to the proper meaning of the same language in 
§ 706(g) of Title VII”). 

By 1964, when Congress looked to the NLRA in drafting 
Title VII, it was established that Section 10(b)’s six-month 
limitations period was subject to the traditional continuing 
violation doctrine. An unfair labor practice that occurred 
within the six-month period could be challenged even if 
a charge alleging the same violation, or a similar and related 
violation, could have been brought before the six-month 
period.4 But a charge could not be brought outside the limi- 

4 E.g., NLRB v. Carpenters Local Union No. 1028, 232 F.2d 454, 456 
(10th Cir.) (discriminatory enforcement of closed-shop agreement during 
limitations period satisfies Section 10(b)), cert. denied, 352 U.S. 839 (1956); 
NLRB v. Dallas Gen. Drivers, Local Union 745, 228 F.2d 702, 705 (5th 
Cir. 1956) (“[I]f the contract provision giving the Union sole power to 
settle seniority disputes violated the Act, or if the Union exercised that 
power discriminatorily, each time it did so constituted a separate and dis- 
tinct act, whether or not the decision so to act was made outside the six- 
month period.”), cert. denied, 361 U.S. 814 (1959); NLRB v. International 
Bhd. of Teamsters, 225 F.2d 343, 345-346 (8th Cir. 1955) (rejecting argu- 
ment that employees had notice of discriminatory seniority system before 
the limitations period); NLRB v. F.H. McGraw & Co., 206 F.2d 635, 639 
(6th Cir. 1953) (finding a “continuing offense” where “the unfair labor 
practice alleged in the complaint was not the execution of this contract, 
but its enforcement and implementation * * * within the period of 
limitations”); Katz v. NLRB, 196 F.2d 411, 415 (9th Cir. 1952) (“continued 
and continuous enforcement” of illegal union shop agreement constituted 
continuing violation); Melville Confections, Inc., 142 N.L.R.B. 1334, 1335 

15 

tations period when the alleged unfair labor practice was 
“fully consummated” and caused injury more than six 
months before the charge was filed. Bowen Prods. Corp., 
113 N.L.R.B. 731, 732 (1955); see, e.g., Local Lodge No. 1424, 
Int’l Ass’n of Machinists v. NLRB (Bryan Mfg.), 362 U.S. 
411, 422-423 (1960); NLRB v. Pennwoven, Inc., 194 F.2d 521, 
525 (3d Cir. 1952). 

Although termed the “continuing violation” doctrine, the 
doctrine applied under the NLRA did not mean that vio- 
lations that occurred outside the limitations period were 
revived and became actionable because a course of violations 
continued into the limitations period. Rather, relief was 
awarded only for violations within the six-month period. 
See, e.g., Melville Confections, Inc., 327 F.2d at 692. Reme- 
dies such as back pay “would only start from the day six 
months before the filing of the charge[],” and were not 
available to remedy related violations outside the six-month 
period. Pennwoven, Inc., 194 F.2d at 525; see id. at 524 (dis- 
cussing National Labor Relations Board’s position); see also 
Pennwoven, Inc., 94 N.L.R.B. 175, 192 (1951) (trial exam- 
iner’s decision).5 

2. In 1972, eight years after it drew on the NLRA pre- 
cedent in drafting Section 706 of the Civil Rights Act, Con- 
gress amended Title VII by, among other things, expanding 
the limitations period to 180 or 300 days, rather than the 90 
or 210 days it had specified in 1964. See generally Mohasco 
Corp. v. Silver, 447 U.S. 807, 818-824 (1980). That amend- 

& n.1, 1337-1339 (1963) (finding that a profit-sharing plan adopted in 1957 
“and made known to [the company’s] employees at all times thereafter” 
warranted relief when charge was filed in September 1962), enforced, 327 
F.2d 689, 692 (7th Cir.), cert. denied, 377 U.S. 933 (1964). 

5 Without rejecting the Board’s legal approach to continuing violation 
cases, the Third Circuit held in Pennwoven that the facts presented did 
not establish a new violation within the charge-filing period. 194 F.2d at 
524-526. 

16 

ment did not, however, signal a departure from the NLRA 
model. To the contrary, the House and Senate committee 
reports on the 1972 amendments referred to the new 180-day 
limitations period as being “similar to” or “identical to” the 
six-month limitations period that applied under Section 10(b) 
of the NLRA. S. Rep. No. 415, 92d Cong., 1st Sess. 37 
(1971); H.R. Rep. No. 238, 92d Cong., 1st Sess. 65 (1971) 
(Minority Views). 

The drafters of the 1972 amendments were aware that 
courts had applied the continuing violation doctrine under 
Title VII since 1964, and they approved of those decisions. 
See 118 Cong. Rec. 7166, 7167 (1972) (section-by-section 
analysis of final bill, submitted on Senate floor, stating that 
“[e]xisting 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”); id. at 4940, 4941 (summary of Senate bill, stating 
same). The history of Section 706(e) therefore can be read as 
ratifying the fundamental principle, already recognized by 
the courts, that when unlawful employment practices under 
Title VII “involve a pattern of conduct extending over a 
period of time, a ‘continuing’ violation rather than a single 
incident, * * * the [limitations] requirement is satisfied if 
the charge is filed with the EEOC while such conduct or 
pattern of conduct continues or within 90 [now 180 or 300] 
days after it ceases.” Jamison v. Olga Coal Co., 335 F. 
Supp. 454, 458 (S.D. W. Va. 1971); see, e.g., Watson v. 
Limbach Co., 333 F. Supp. 754, 765-766 (S.D. Ohio 1971) 
(citing cases); Sciaraffa v. Oxford Paper Co., 310 F. Supp. 
891, 896 (D. Me. 1970) (same). Furthermore, the “[e]xisting 
case law” referenced by legislators, 118 Cong. Rec. at 7167, 
commonly allowed suits to proceed when it was apparent 
that the plaintiff had notice of the unlawful practice more 
than 90 days before the plaintiff filed with the EEOC. See, 

17 

e.g., Mixson v. Southern Bell Tel. & Tel. Co., 334 F. Supp. 
525 (N.D. Ga. 1971); Watson, 333 F. Supp. at 765; Tippet v. 
Liggett & Myers Tobacco Co., 316 F. Supp. 292, 294-296 
(M.D.N.C. 1970); Sciaraffa, 310 F. Supp. at 894, 896-897; 
Culpepper v. Reynolds Metals Co., 296 F. Supp. 1232, 1234- 
1236 (N.D. Ga. 1968), rev’d in part on other grounds, 421 
F.2d 888 (5th Cir. 1970). 

3. This Court’s decisions confirm that a Title VII plaintiff 
may recover for discrimination that occurs within the 
charge-filing period despite having notice of a violation out- 
side the period, but may not recover for violations that 
occurred outside the period. In Bazemore v. Friday, 478 
U.S. 385 (1986), the Court ruled that a continuing practice of 
salary discrimination that began before Title VII’s effective 
date was actionable, but only “to the extent [the] employer 
continued to engage in that act or practice.” Id. at 395 
(Brennan, J., joined by all other Members of the Court, 
concurring in part). The Court explained that acts that are 
the subject of time-barred claims “ha[ve] ‘no present legal 
consequences,’ ” and that “[t]he ‘critical question’ * * * ‘is 
whether any present violation exists.’ ” 
Id. at 396 n.6 

(quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 
(1977)). In Bazemore there was a present violation, because 
“[e]ach week’s paycheck that delivers less to a black than to 
a similarly situated white is a wrong actionable under Title 
VII, regardless of the fact that this pattern was begun prior 
to the effective date of Title VII.” Id. at 395-396. 

In Lorance v. AT&T Technologies, Inc., supra, the Court 
again suggested that notice of a continuing violation does not 
preclude a plaintiff from recovering for violations within the 
limitations period. The Court held that an employer’s adop- 
tion of a facially neutral seniority system with discrimina- 
tory intent does not constitute an ongoing violation that can 
be challenged after the limitations period runs. 490 U.S. at 
905-911. The Court noted, however, that a facially discri- 

18 

minatory seniority system “discriminates each time it is 
applied,” and therefore “can be challenged at any time,” even 
though discrimination may have been obvious at its adoption. 
Id. at 912 & n.5. See also Delaware State College v. Ricks, 
449 U.S. 250, 257, 259-260 (1980) (finding action time-barred 
where plaintiff failed to identify discriminatory acts that 
continued into the limitations period); Evans, 431 U.S. at 558 
(same).6 

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), is 
consistent with those decisions. In Havens Realty, the 
Court permitted plaintiffs to seek relief under the Fair 
Housing Act, 42 U.S.C. 3604, for racial “steering,” some of 
which occurred within the limitations period, but some of 
which was outside the limitations period. The Court re- 
jected the landlord’s argument that the suit could not go for- 
ward because the plaintiffs “were fully apprised of the facts 
and of their rights” before the six-month limitations period. 
Pet. Br. at 33, Havens Realty Corp., supra (No. 80-988). The 
Court held, instead, that the plaintiffs could sue because they 
had alleged “an unlawful practice that continue[d] into the 
limitations period,” 455 U.S. at 381 (footnote omitted), and 
that caused current injury, see id. at 379, 381, 382. At the 
same time, the plaintiffs could not maintain claims that 
related solely to incidents outside the limitations period. Id. 
at 381. The Court did not address the appropriate measure 
of relief. Rather, it noted that the parties had entered into 
an agreement that, if approved by the district court, would 

6 In 1991, Congress legislatively overruled the narrow holding of 
Lorance and allowed challenges to the application of facially neutral but 
intentionally discriminatory seniority systems after their adoption. Civil 
Rights Act of 1991, Pub. L. No. 102-166, § 112, 105 Stat. 1078-1079 (42 
U.S.C. 2000e-5(e)(2)). Congress, however, did not alter the general rule 
that one-time acts of discrimination are not actionable outside the limita- 
tions period, even if their effects are still being felt. 

19 

have liquidated the plaintiffs’ monetary damages and made 
quantification unnecessary. See id. at 371. 

4. Allowing recovery for discrimination within the 
charge-filing period without regard to whether the plaintiff 
had prior notice of the unlawful practice—but not for viola- 
tions that occurred before the charge-filing period—furthers 
the remedial purposes of Title VII. “[T]he primary ob- 
jective” of Title VII “was a prophylactic one.” Albemarle 
Paper Co. v. Moody, 422 U.S. 405, 417 (1975). Although Con- 
gress wanted individuals who are targets of discrimination 
to be made whole for those violations that are actionable, see 
id. at 418, Congress above all wanted “to achieve equality of 
employment opportunities and remove barriers that ha[d] 
operated in the past to favor an identifiable group of white 
employees over other employees,” id. at 417 (quoting Griggs 

v. Duke Power Co., 401 U.S. 424, 429-430 (1971)). It would 
undermine that “dominant purpose * * * to root out 
discrimination in employment,” EEOC v. Shell Oil Co., 466 
U.S. 54, 77 (1984), if persons who are subjected to ongoing 
employment discrimination could not sue within the charge- 
filing period because they were or should have been on prior 
notice of the violation. 

Allowing private plaintiffs to sue on all violations that 
occur within the charge-filing period, without regard to 
notice, also serves Congress’s objective of encouraging con- 
ciliation and informal resolution of disputes. Congress 
wanted “to promote conciliation rather than litigation in the 
Title VII context,” Burlington Indus., Inc. v. Ellerth, 524 
U.S. 742, 764 (1998), and accomplishment of that objective 
requires employees promptly to report possible discrimina- 
tion to their employer. The Court has recognized, for 
example, that Title VII’s objectives are served when em- 
ployees are encouraged to report sexual harassment to their 
employer before it becomes severe or pervasive. Ibid. If an 
employee who reported harassment in its early stages (1) 

20 

were deemed to have demonstrated knowledge of her claim 
and (2) consequently became disabled from suing if the 
harassment continued, Title VII’s limitations rules could 
become an obstacle to informal and early termination of 
discriminatory conduct. Employees would be discouraged 
from giving their employer prompt notice of harassment and 
from attempting to resolve disputes informally. And, to the 
extent that employees attempted to protect their Title VII 
claims by filing a charge with the EEOC after each indi- 
cation of conceivably actionable harassment, the EEOC and 
the courts would be burdened by a flood of incident-specific 
suits. Cf. Heard v. Sheahan, 253 F.3d 316, 320 (7th Cir. 2001) 
(Section 1983 claim).7 

Finally, allowing suits for unlawful practices that occur 
within the limitations period effectuates Congress’s policy 
of “protect[ing] employers from the burden of defending 
claims arising from employment decisions that are long 
past.” Ricks, 449 U.S. at 256-257. Although staleness con- 
cerns generally “disappear[]” when suit is brought on a vio- 
lation within the limitations period, Havens Realty, 455 U.S. 
at 380, permitting a plaintiff to challenge related violations 
that occurred outside the limitations period would threaten 
injustice by reviving “claims that have been allowed to 

7 In harassment cases, “duration is often necessary to convert what is 
merely offensive behavior * * * into an actionable alteration in the 
plaintiff’s working conditions.” Dasgupta v. University of Wis. Bd. of 
Regents, 121 F.3d 1138, 1139 (7th Cir. 1997) (citations omitted). Con- 
fusingly, courts sometimes refer to claims that take a long time to accrue 
as continuing violations. See, e.g., Frazier v. Delco Elecs. Corp., No. 99- 
2710, 2001 WL 964933, at *2 (7th Cir. Aug. 24, 2001); Freeman v. Madison 
Metro. Sch. Dist., 231 F.3d 374, 381 (7th Cir. 2000). When it remanded 
respondent’s pre-limitations hostile environment claims for trial, however, 
the court of appeals in this case did not rely on a theory that respondent’s 
cause of action had not yet accrued as of May 3, 1994. See Pet. App. 19a- 
20a. 

21 

slumber until evidence has been lost, memories have faded, 
and witnesses have disappeared.” Order of R.R. Tele- 
graphers v. Railway Express Agency, Inc., 321 U.S. 342, 349 
(1944). 

By permitting suits for violations within the limitations 
period, and foreclosing suits for violations outside the limita- 
tions period, Congress has balanced the competing interests 
of employees, employers, and the public. Allowing Title VII 
claimants to sue within the limitations period even if they 
had earlier notice of the unlawful employment practice 
safeguards the important role of private suits in promoting 
compliance and in obtaining compensation for the victims of 
discrimination, and ensures that employers have an ongoing 
incentive to comply with Title VII. Prohibiting suit on pre- 
limitations claims encourages potential plaintiffs to bring 
their claims promptly and protects employers against the 
unfairness of defending against stale claims. Neither the 
open-ended liability allowed by the court of appeals in this 
case, nor strict enforcement of a notice rule to bar suits that 
challenge ongoing violations, would be consistent with Con- 
gress’s balance or with the analogous rules developed in 
other areas of law. 

5. Although notice outside the limitations period should 
not be a complete bar to recovery, notice is relevant in con- 
tinuing violation cases, as in other contexts. This Court held 
in Zipes that the filing deadlines of Section 706(e) are “sub- 
ject to waiver, estoppel, and equitable tolling.” 455 U.S. at 
393. A Title VII plaintiff therefore could recover for conduct 
that occurred outside the limitations period when, for 
example, the employer’s misconduct prevented the plaintiff 
from receiving notice of the violation. See generally 
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 
(1984) (per curiam) (discussing equitable doctrines); Cada v. 
Baxter Healthcare Corp., 920 F.2d 446, 450-453 (7th Cir. 
1990), cert. denied, 501 U.S. 1261 (1991) (same); Wolin v. 

22 

Smith Barney Inc., 83 F.3d 847, 851-853 (7th Cir. 1996) 
(same). 

Moreover, some courts have applied the discovery rule to 
determine when a claim accrues in Title VII cases. Under 
such a rule, the charge-filing period begins to run with re- 
spect to a particular incident when the potential plaintiff 
learns (or with diligence should have learned) of his injury. 
See, e.g., Oshiver v. Levin, Fishbein, Sedran & Berman, 38 
F.3d 1380, 1385-1387 (3d Cir. 1994); Cada, supra; see 
generally 2 P. Cox, Employment Discrimination ¶ 22.02, at 
22-14 to 22-15.0 (3d ed. 2000) (discussing cases); 2 B. Linde- 
mann et. al., Employment Discrimination Law 1347-1350 
(3d ed. 1996) (same). That approach makes notice an aspect 
of claim-accrual. 

B. Neither Caps On Back Pay Nor Damages Provisions 

Demonstrate That Congress Intended To Allow Re- 
covery For Unlawful Practices That Occurred Outside 

The Charge-Filing Period 

The language and history of Section 706(e), and the 
policies underlying Title VII, thus support application of 
the traditional rule that each act in furtherance of a wrongful 
scheme begins a new limitations period, but does not revive 
claims based on violations outside the limitations period. 
Nonetheless, the court of appeals in this case applied a rule 
that “contrasts sharply with the principle applied to con- 
tinuous courses of wrongful conduct in other areas of the 
law,” Johnson v. Nyack Hosp., 891 F. Supp. 155, 162 n.5 
(S.D.N.Y. 1995), aff ’d, 86 F.3d 8 (2d Cir. 1996), and allows the 
plaintiff to recover for conduct outside the limitations period 
as long as it is closely related to conduct within the period. 
Pet. App. 14a-20a. Other lower courts also allow challenges 
to pre-limitations conduct under certain circumstances. E.g., 
Sabree v. United Bhd. of Carpenters Local No. 33, 921 F.2d 
396, 399-402 (1st Cir. 1990); Berry v. Board of Supervisors of 

23 

L.S.U., 715 F.2d 971, 979-981 (5th Cir. 1983). The EEOC 
adheres to that approach as well. See, e.g., Anisman v. 
O’Neill, Appeal. No. 01994634, 2001 WL 402493, at *5 
(EEOC Apr. 12, 2001). Nothing in Title VII supports such 
disregard for Section 706(e)’s incorporation of the traditional 
continuing violation doctrine. 

1. One argument for deviating from the traditional rule 
focuses on Section 706(g), which has provided since 1972 that 
“[b]ack pay liability shall not accrue from a date more than 
two years prior to the filing of a charge with the Com- 
mission.” 42 U.S.C. 2000e-5(g)(1). A two-year limitation on 
back pay, the argument goes, would not have been needed if 
the charge-filing deadlines of Section 706(e) limited recovery 
(including back pay) to violations that occurred within 300 
days of the filing of the charge. See, e.g., Sabree, 921 F.2d at 
401. 

That argument is not persuasive. Whereas the limitations 
language of Section 706(e) speaks directly to when suit must 
be brought, Section 706(g) merely sets an outer limit on back 
pay that, on its face, does not foreclose application of a 
shorter limitations period. Nor does the legislative history 
of Section 706(g) suggest that Congress meant to foreclose 
application of the traditional rule developed in antitrust, 
tort, contract, and labor cases. 

Section 706(g)’s two-year limitation arose initially out of a 
concern that employers could, absent such a limitation, be 
subject to large back pay awards in federal “pattern or 
practice” suits brought under Section 707, 42 U.S.C. 2000e-6, 
which did not have any time limitation (other than that an 
action could not reach conduct before the effective date of 
the 1964 Act). See H.R. Rep. No. 238, supra, at 65-66 
(Minority Views). The inclusion of current Section 707(e), 
42 U.S.C. 2000e-6(e), in the 1972 legislation lessened (but did 
not completely eliminate, see p. 25, infra) that concern 
because it applied the procedures of Section 706 to EEOC 

24 

actions under Section 707. Nevertheless, the two-year cap 
on back pay was included in the final version of the 1972 
amendments as well. Supporters of the two-year provision 
urged that it was needed because the EEOC and some 
courts were not interpreting the 90-day charge-filing period 
as a limitation on recovery under Section 706. See 117 Cong. 
Rec. 31,973, 31,974, 31,981 (1971) (Rep. Erlenborn); id. at 
31,979 (Rep. Dent). The supporters did not endorse those 
decisions, however, and other contemporaneous court deci- 
sions placed a 90-day limitation on back pay in light of the 
charge-filing deadline. See United States v. Georgia Power 
Co., Civ. No. 12355, 1971 WL 162, at *27, *28-*29 (N.D. Ga. 
June 30, 1971) (Sections 706 and 707), rev’d in part, 474 F.2d 
906 (5th Cir. 1973); Johnson v. Goodyear Tire & Rubber Co., 
349 F. Supp. 3, 18 n.8 (S.D. Tex. 1972), rev’d in part, 491 F.2d 
1364 (5th Cir. 1974). In the end, the 1972 amendments did 
not include any language stating whether recovery was or 
was not available beyond the limitations period, but simply 
ensured that, however the courts answered that question, 
back pay would not be available for more than two years 
beyond the filing of the charge. 42 U.S.C. 2000e-5(g)(1). 

This Court’s decision in Evans further undercuts any 
argument that the 1972 amendments ratified awards of back 
pay beyond the limitations period. To the extent that courts 
made such awards before the 1972 amendments, they gen- 
erally did so under the so-called “effects theory,” which held 
that “if an act originating in the past operates to discrimi- 
nate against the complainant at the present time, there is a 
continuous violation.” Note, Employment Discrimination 
and Title VII of the Civil Rights Act of 1964, 84 Harv. L. 
Rev. 1109, 1210 (1971). The Evans Court rejected the effects 
theory in 1977. 431 U.S. at 557-558; see J. Carty, The 
Continuing Violation Theory of Title VII After United Air 
Lines, Inc. v. Evans, 31 Hastings L.J. 929, 936-949 (1980). 
Congress has not overruled the holding of Evans through 

25 

legislation. Accordingly, it cannot persuasively be argued 
that Congress has validated back pay awards that were 
made under a theory of liability that Evans rejected. See D. 
Laycock, Continuing Violations, Disparate Impact in Com- 
pensation, and Other Title VII Issues, 49 Law & Contemp. 
Probs. 53, 58 (1986). 

Finally, a general rule limiting recovery to violations with- 
in the limitations period does not render the two-year 
limitation on back pay superfluous. Equitable doctrines may 
extend the charge-filing period (and thus the recovery 
period) beyond 300 days, so that the two-year limitation 
might apply. See D. Laycock, supra, at 58. Moreover, the 
United States has long taken the position that the charge- 
filing periods of Section 706(e) are not relevant to investi- 
gations and suits by the Attorney General (rather than the 
EEOC) under Section 707. The concern about federal pat- 
tern or practice suits that initially motivated legislators to 
propose a two-year restriction on back pay thus remains 
relevant, and Section 706(g) serves as a restriction on relief 
in some Section 707 actions. See United States v. Fresno 
Unified Sch. Dist., 592 F.2d 1088, 1096 & n.5 (9th Cir.), cert. 
denied, 444 U.S. 832 (1979). 

2. Congress’s authorization of capped awards of compen- 
satory damages (relating to non-pecuniary losses) and puni- 
tive damages under the Civil Rights Act of 1991, Pub. L. No. 
102-166, § 102, 105 Stat. 1072-1074 (42 U.S.C. 1981a), likewise 
is consistent with the traditional rule that limits recovery to 
violations occurring within the limitations period. Dollar 
limits on damages are compatible with temporal limits on 
recovery, and the two restrictions implicate different con- 
siderations. The dollar caps were part of a legislative com- 
promise in 1991 that made compensatory and punitive 
damages available for the first time, but subjected them to 
statutory caps. The 1991 Act, however, did not modify Sec- 
tion 706(e)’s limitations period, nor did it otherwise change 

26 

the recovery previously available under the Civil Rights Act 
of 1964 and the 1972 amendments. See Pollard, 121 S. Ct. at 
1951-1952. 

3. Finally, there is no practical obstacle to applying the 
traditional continuing violation doctrine to Title VII cases. 
Awarding relief for only the later violations in a series of 
related violations is not unworkable. To be sure, fixing the 
precise amount of damages due for those violations that are 
within the limitations period may sometimes prove difficult. 
For example, although it may be straightforward for a jury 
to determine whether particular out-of-pocket costs such as 
moving and job-search expenses flow from a violation within 
the limitations period, it may be more difficult to decide 
whether medical or psychiatric treatments, or pain and suf- 
fering, are attributable to violations after the limitations 
period began to run, rather than before. But such problems 
of proof are not unique to Title VII, and they can be 
addressed through the “[c]onventional rules of civil litiga- 
tion” that apply to Title VII claims. Price Waterhouse v. 
Hopkins, 490 U.S. 228, 253 (1989) (opinion of Brennan, J.). 
Those “conventional rules” draw a “clear distinction between 
the measure of proof necessary to establish the fact that [a 
plaintiff] had sustained some damage, and the measure of 
proof necessary to enable the jury to fix the amount.” Ibid. 
(quoting Story Parchment Co. v. Paterson Parchment Paper 
Co., 282 U.S. 555, 562 (1931)). The plaintiff need not estab- 
lish the amount of damages with exactitude, but is required 
only to establish “a basis for a reasonable inference as to the 
extent of the damages.” Anderson v. Mt. Clemens Pottery 
Co., 328 U.S. 680, 688 (1946). 

C. Respondent May Not Recover For Discrimination That 

Occurred Outside the 300-Day Charge-Filing Period 

It follows from the principles set forth above that the 
court of appeals in this case erred when it held that 

27 

petitioner’s “pre-limitations period conduct should have been 
presented to the jury * * * for purposes [of] liability.” Pet. 
App. 21a. Evidence about respondent’s conduct was, rather, 
“relevant background evidence,” Evans, 431 U.S. at 558, 
particularly insofar as it “tend[ed] reasonably to show the 
purpose and character of ” allegedly discriminatory acts that 
occurred within the limitations period, FTC v. Cement Inst., 
333 U.S. 683, 705 (1948). This rule of evidence is particularly 
significant as applied to respondent’s post-limitations hostile 
work environment claim, which must be evaluated based on 
the totality of the circumstances. See Harris v. Forklift 
Sys., Inc., 510 U.S. 17, 23 (1993); cf. Van Steenburgh v. Rival 
Co., 171 F.3d 1155, 1159 (8th Cir. 1999) (“An incident within 
the limitations period need not satisfy the definition of 
sexual harassment under Title VII when viewed in isolation. 
Rather, the jury must be capable of perceiving the incident 
as ‘discriminatory’ in light of all the prior incidents of sexual 
harassment.”) (citations omitted). But see, e.g., Sowell v. 
Alumina Ceramics, Inc., 251 F.3d 678, 682-683 (8th Cir. 
2001); Minor v. Ivy Tech State College, 174 F.3d 855, 857 (7th 
Cir. 1999). 

The district court acknowledged the relevance of pre- 
limitations conduct in its decision granting partial summary 
judgment for petitioner. Pet. App. 40a-41a n.9. Respondent 
has suggested, however, that the district court’s instructions 
to the jury took too narrow a view of the use that could be 
made of the evidence. Id. at 6a; see C.A. E.R. 464 (“You will 
not consider this evidence for any purpose other than 
providing context.”); id. at 878 (pre-limitations evidence “will 
help you understand the context in which [the post-limita- 
tions occurrences] happened, who the players were and all of 
that.”). That issue is not implicated by the question pre- 
sented, but it could be considered by the court of appeals on 
remand. See Pet. App. 21a (“In light of our ruling, we need 

28 

not specifically rule on the evidentiary issues raised by 
Morgan.”). 

CONCLUSION 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

THEODORE B. OLSON 

Solicitor General 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

PAUL D. CLEMENT 

Deputy Solicitor General 

AUSTIN C. SCHLICK 

Assistant to the Solicitor 

General 

MARLEIGH D. DOVER 
JOHN C. HOYLE 

Attorneys 

AUGUST 2001