711.2 Continuing violations

The method of determining the timeliness of a claim of discrimination in compensation approved in Abbyland Processing v. LIRC, 206 Wis. 2d 309 (Ct. App. 1996), and Rice Lake Harley Division v. LIRC, 2014 WI App 104, 357 Wis. 2d 621, applies to a compensation claim based on protected categories other than sex -- here, race, color, national origin and ancestry. A compensation claim is timely if it alleges a discriminatory payment of compensation occurring within 300 days of the filing of the complaint, even if the employer’s alleged decision to discriminate in pay arose prior to the statutory filing period. Gallardo v. Accurate Specialties, Inc. (LIRC, 09/06/19).

The Complainant’s allegation that her transfer to a different job, which occurred more than 300 days before the complaint was filed, was part of an ongoing pattern of harassment, was rejected because continuing violation theory does not apply to discrete personnel actions. Lamont v. Nelson Global Prods. (LIRC, 06/10/19).

The Commission believes that its reliance on AMTRAK v. Morgan and other federal court decisions on the application of the statute of limitations to compensation discrimination, was misplaced. The Commission will return to the interpretation reflected in the Wisconsin Court of Appeals’ 1996 Abbyland decision, that “[s]alary discrimination is an ongoing matter and can be challenged if the result of the discrimination occurs both within and outside the statute of limitations.” Mack v. Rice Lake Harley Davidson (LIRC, 02/07/13), aff’d, Rice Lake Harley Davidson v. LIRC (Barron Co. Cir. Ct., 11/12/13); 2014 WI App 104, 357 Wis. 2d 621, 855 N.W.2d 882, rev. denied, 01/13/15.

When the Complainant opened a box of doughnuts, another worker stated something to the effect of, “The pink one’s for you, buddy.” The individual who made the remark had previously told other workers that he disliked the Complainant because of his homosexuality, which he regarded as being against his religious beliefs. The Complainant had been subjected to other harassing remarks regarding his sexual orientation. Given this, the “pink doughnut incident” did have a sexual connotation, and it was part of a pattern of harassment based upon the Complainant’s sexual orientation. This incident occurred within the 300-day statute of limitations period. Based upon this, the Respondent’s argument that the complaint was time barred and that no earlier acts of harassment could be considered, was rejected. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11).

Hostile environment claims are based upon the cumulative effect of individual acts. The entire time period of the hostile environment may be considered for the purposes of determining liability if at least one act contributing to the claim occurred within the 300-day filing period. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11).

The general rule announced in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) reaffirmed the principle that discrete acts are generally not subject to application of the continuing violation doctrine, but that harassing acts generally are. The Lilly Ledbetter Fair Pay Act of 2009 clarified that a discriminatory compensation decision occurs each time compensation is paid pursuant to the discriminatory compensation practice. The rule set out in Ledbetter and prior cases – that current effects alone cannot breathe new life into prior uncharged discrimination – is still binding for disparate treatment cases involving discrete acts other than pay. Bethke v. Virchow Krause (LIRC, 01/29/10).

A “failure to promote” discrimination claim is a discrete employment action, and discrete employment actions are not actionable if they are filed more than 300 days after the discrete discriminatory act occurred. Anderson v. Baldwin Area Med. Ctr. (LIRC, 05/08/08).

The Administrative Law Judge improperly denied the Complainant the right to present testimony regarding acts of alleged harassment which occurred outside of the 300-day period prior to the filing of his complaint. The complaint alleged that the Complainant had been subjected to a hostile working environment. Hostile environment claims by their very nature involve conduct which occurs over a series of days, or perhaps years. Such claims are based on the cumulative effect of individual acts. A Complainant may show a series of related acts, one or more of which are within the limitations period. A serial violation is established if the evidence indicates that the alleged acts of discrimination occurring prior to the limitations period are sufficiently related to those occurring within the limitations period. In this case, only one of the alleged incidents which the Complainant alleged created a hostile work environment occurred within the 300 days prior to the filing of his complaint. This did not, however, make his hostile work environment claim untimely. Bowen v. LIRC, 2007 WI App 45, 299 Wis. 2d 800, 730 N.W.2d 164.

The basic holding of National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002), is that discrete acts are generally not subject to application of the continuing violation doctrine, but that harassing acts generally are. In this case, the acts of alleged harassment, one of which fell within the actionable 300-day period, were determined to be a part of a continuing violation. These allegations were, therefore, timely. Kanter v. Ariens Co. (LIRC, 09/23/05).

A disciplinary warning and a denial of the Complainant’s request for a permanent assignment were discrete personnel actions which were not susceptible to application of the continuing violation doctrine. Wodack v. Evangelical Lutheran Good Samaritan Soc’y (LIRC, 08/05/05).

The modification of the Complainant’s lunch schedule, the imposition of discipline and other acts of alleged discrimination were discrete personnel actions not susceptible to application of the continuing violation doctrine. Koenigsaecker v. City of Madison(LIRC, 03/11/05).

In its decision in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), the Supreme Court identified two classes of employment actions (i.e., discrete acts and harassing acts underlying hostile environment claims). Its basic holding was that discrete acts are generally not subject to application of the continuing violation doctrine, but that harassing acts are. The Court identified the following as examples of discrete acts: termination, failure to promote, denial of transfer, refusal to hire, denial of training, written counseling, and award of compensation. They concluded that discrete employment actions are not susceptible to application of the continuing violation doctrine regardless of whether they are related in some way to employment actions which took place during the actionable period. Josellis v. Pace Indus. (LIRC, 08/31/04).

The Labor and Industry Review Commission has looked to federal court decisions in Title VII cases for guidance on continuing violation and other timeliness issues. In this case it relied upon the decision of the Supreme Court of the United States in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), to support its conclusion that discrete employment actions such as a refusal to hire are not susceptible to application of the continuing violation doctrine regardless of whether they are related in some way to employment actions which took place during the actionable period. Jackson v. Aurora Health Care (LIRC, 08/24/04).

Discrete employment actions are not susceptible to application of the continuing violation doctrine even if they are related in some way to employment actions which took place during the actionable period. The U.S. Supreme Court clarified the continuing violation doctrine in AMTRAK v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). In that decision, the Court held that discrete acts are generally not subject to application of the continuing violation doctrine, but harassing acts generally are. The Court identified the following as examples of discrete acts: termination, failure to promote, denial of transfer, refusal to hire, denial of training, written counselings, and awards of compensation. It held that related discrete acts do not constitute a single unlawful practice for the purpose of timely filing. Lau v. Latec Credit Union (LIRC, 02/07/03).

The Complainant was required to perform back-up teller duties (which were generally regarded as less desirable duties) more frequently than a younger coworker. Each time the Complainant was directed to perform back-up teller duties would be considered a discrete act. As a result, the complaint was untimely filed as it related to those back-up teller assignments which predated the actionable statute of limitations period. Lau v. Latec Credit Union (LIRC, 02/07/03).

A termination is a discrete and completed personnel action which may not be rendered timely through its possible connection to other personnel actions. The continuing violation doctrine is inapplicable in such a situation. Moeller v. County of Jackson (LIRC, 01/27/03).

The Complainant alleged that in 2002, when she was about to retire, she learned that she had lost six months of retirement benefit service as a result of a short period of time when she was off work after having been terminated in 1969 due to a pregnancy (she had subsequently been re-hired). The Complainant filed a complaint alleging sex discrimination in June of 2002. Throughout the Complainant’s tenure at the Respondent, the Respondent had maintained a retirement plan for its employees. The plan provided for benefits for every year worked, with a reduction for time not worked. As a consequence of the time the Complainant was not employed during 1969, she received only five-twelfths of a year credit towards her benefit service. The Complainant knew or should have known back in 1969, when her employment was terminated in January and she was later rehired in July, what effect her loss of hours of work would have on her benefit service for the year 1969. Her complaint amounts to a claim about the present effects of a past act of discrimination. However, discrimination occurs when the employer acts and the employee knows about it, not when the effects of the action are most painfully felt. Accordingly, the complaint was untimely. Webster v. Appleton Papers (LIRC, 12/23/02).

The Complainant did not establish a continuing violation where he was informed of his demotion and accompanying reduction in pay more than 300 days prior to the date that he filed his complaint. The Complainant’s continued employment did not make the action taken by the Respondent ongoing and continuing discriminatory conduct. His argument that his continued employment caused the alleged discrimination to be ongoing and continuing discriminatory conduct amounts to a claim about the present effects of alleged past discriminatory conduct. The present effects of past discrimination theory involves a situation in which the adverse effects of a past discriminatory act continue into the limitations period. This theory was rejected by the United States Supreme Court in United Airlines v. Evans, 431 U.S. 553, 558 (1977). Eller v. CHR Hansen, Inc. (LIRC, 01/31/02).

There are three viable continuing violation theories. The first theory stems from cases (usually involving hiring or promotion practices) where the employer’s decision-making process takes place over a period of time, making it difficult to pinpoint the exact day the violation occurred. The second theory stems from cases in which the employer has an express, openly espoused policy that is alleged to be discriminatory. The third continuing violation theory stems from cases in which the Complainant alleges that the employer has, for a period of time, followed a practice of discrimination, but has done so covertly, rather than by way of an open policy. In such cases the challenged practice is evidenced only by a series of discreet, allegedly discriminatory acts. (These criteria were set forth in Selan v. Kiley, 969 F.2d 560 (7th Cir. 1992)). Under the third theory, the question is whether the Respondent’s acts were related closely enough to constitute a continuing violation or were merely discreet, isolated and completed acts which must be regarded as individual violations. There are three factors to be used to make this determination. The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuous violation? The second is frequency. Are the alleged acts recurring (e.g., a bi-weekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is the degree of permanence. Does the act have the degree of permanence which should trigger an employee’s awareness of and duty to assert his rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate? (These factors were originally enumerated in Berry v. Bd. of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983)). Talley-Ronsholdt v. Marquette Univ. (LIRC, 02/13/01).

A Complainant may not base her suit on conduct that occurred outside the statute of limitations period unless it would have been unreasonable to expect the Complainant to file a complaint before the statute ran on that conduct. (This is the standard set forth in Galloway v. General Motors, 78 F.3d 1164, 1167 (7th Cir., 1996)). In this case, the Complainant claimed in December of 1998 that the continuous running of a window air conditioner (which continued into the 300-day filing period) was a discriminatory action which could serve as an anchor for earlier alleged discriminatory conduct by the Respondent. The alleged continuous running of the window air conditioner began in the early 1990’s. By no later than the Complainant’s claimed near death in 1993, this should have triggered the Complainant’s awareness of and duty to assert her rights clearly. By then, this should have indicated to her that the continued existence of the consequences of this act was to be expected without being dependent upon a continuing intent to discriminate. Therefore, her complaint relating to terms and conditions of employment was untimely. Talley-Ronsholt v. Marquette Univ. (LIRC, 02/13/01).

The Complainant alleged that her complaint should be considered timely filed as it related to other alleged incidents of sexual harassment through application of a continuing violation theory. One purpose of applying a continuing violation theory in a context such as this is to protect the employee who would have had no reason to believe that she was being harassed until a series of adverse actions established a visible pattern of discriminatory treatment. Here, the Complainant acknowledged that the alleged harassment began more than one year before she filed her complaint. Obviously, she had formed a belief prior to the actionable period that she was being harassed. This belief triggered the Complainant’s duty to file a complaint, which she failed to do until more than 300 days later. Therefore, the allegations of sexual harassment were properly dismissed as untimely. Massart v. Univ. of Wis. (Wis. Pers. Comm’n, 10/18/00).

The continuing violation doctrine allows a Complainant to get relief for a time-barred act by linking it with an act that is within the time limitations period. Courts treat such a combination as one continuous act that ends within the limitation period. In this case, the question is whether alleged acts of sexual harassment were related closely enough to constitute a continuing violation or whether they were merely discrete, isolated, and complete acts which must be regarded as individual violations. Javenkoski v. DOT (Wis. Pers. Comm’n, 09/11/00).

A continuing violation can be shown under one of two theories: (1) a continuing course of conduct, or (2) a continuing pattern or practice of discrimination. A continuing pattern or practice of discrimination refers to an openly espoused discriminatory policy that affects an entire class of individuals, such as, for example, a continuing requirement that employees perform Sunday work, or the continued maintenance of different facilities for men and women. The continuing course of conduct theory applies when an individual Complainant has been subjected to a series of separate, but related discriminatory acts, at least one of which takes place within 300 days of the filing of the complaint. For example, where an employee has been the victim of unlawful sexual harassment within the 300 day period before the complaint was filed, she may bring suit challenging all related sexually harassing conduct, including that occurring outside the limitations. Belli v. Village of Greendale (LIRC, 12/15/98).

The Complainant did not establish a continuing violation where he contended that the Respondent’s denial of a promotion (which occurred more than 300 days prior to the filing of the complaint) resulted in his being discriminated against in pay within the 300 day limitations period. The denial of a pay increase is a predictable consequence of the denial of a promotion, and it cannot be considered a separate act of discrimination. In considering whether a continuing course of discriminatory conduct exists, the emphasis is not upon the effects of earlier employment decisions, but upon whether any present violation exists. Thus, while the Complainant is now earning less than he might had different employment decisions been made prior to the running of the statute of limitations, this fact cannot be used to revive an otherwise stale discrimination complaint. Belli v. Village of Greendale (LIRC, 12/15/98).

When a Complainant experiences a continuous practice and policy of discrimination, the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it. Where a continuing violation can be shown, a Complainant is entitled to bring suit challenging all conduct that was a part of that violation, even conduct that occurred outside the limitations period. In this case, the complaint was timely because it alleged that there was an on-going policy or practice by the Respondent of engaging in or permitting sexual harassment to create a hostile work environment that continued through the Complainant’s last day of work. Eckstein v. City of Neenah (LIRC, 08/31/95).

There are two basic continuing violation theories: (1) the continuing course of conduct theory, and (2) the continuing pattern or practice of discrimination theory. The continuing course of conduct theory applies when an individual Complainant had been subjected to a series of separate, but related, discriminatory acts, at least one of which takes place within 300 days of the filing of a complaint. The continuing pattern or practice of discrimination theory requires the presence of a continuing discriminatory practice against a class of individuals and a continuing employment relationship. Jeanpierre v. City of Milwaukee (LIRC, 09/01/93).

The Complainant did not establish a continuing violation where she alleged discrimination in benefits provided to her for doing the same work as males, where she was only subject to this allegedly discriminatory practice as long as she actually received compensation for work. Although the Complainant retired within 300 days prior to the filing of the complaint, she was not actually receiving compensation for work during this period. Thus, she was no longer subject to the policy of receiving unequal benefits during the 300-day statute of limitations. She may have continued to suffer from the effects of past discrimination, but there was no present violation which had continued into the limitations period. Jeanpierre v. City of Milwaukee (LIRC, 09/01/93).

To successfully plead a continuing violation, the Complainant must show that some illegal act, part of a continuing pattern of violations, took place during the 300 days prior to the filing of the complaint. Where more than 300 days passed between the incidents, the alleged discriminatory actions were too sporadic to be found to be a continuing practice. Brye v. Brakebush Bros. (LIRC, 01/11/93).

To establish a continuing violation, a Complainant must demonstrate a substantial relationship or nexus between the timely and untimely claims. In making this determination, a relevant factor is whether the timely and untimely acts involved the same type of discrimination and, thus, tend to connect them in a continuing violation. The Complainant in this case failed to establish a continuing violation where the evidence established that the Complainant's untimely claims of discrimination with respect to privileges and conditions of employment last occurred almost six months prior to her timely claim of discrimination with respect to termination. This decision was bolstered by the fact that the timely claim of discriminatory discharge was significantly different from the untimely claim of discrimination with respect to privileges and conditions of employment. Rangel v. City of Elkhorn (LIRC, 09/30/92).

A complaint of public accommodations discrimination was timely where the complaint alleged that different shower and dressing facilities were provided for men and women at a health club. The Complainant, a male, had first joined the health club several years prior to the filing of his complaint. His complaint was timely because the maintenance of different facilities is a continuing act. Malecki v. Vic Tanny Int’l of Wis. (LIRC, 08/07/92).

The Complainant alleged that she had been discriminated against on the basis of her creed because the Respondent denied group health insurance coverage for Christian Science practitioner expenses. The complaint was filed more than 300 days after the Complainant terminated her group health insurance coverage. However, the Respondent's policy prohibiting reimbursement of Christian Science practitioner expenses was a continuing violation. Therefore, the complaint was timely. Lazarus v. Dep’t of ETF (Wis. Pers. Comm’n, 02/15/91).

A Complainant may successfully claim a continuing violation by showing that an employer maintained an openly espoused discriminatory policy alleged to be discriminatory; that the violation continued into the relevant time period; and that the Complainant remained employed and subject to the policy during the limitation period. In this case, the Respondent instituted a policy of mandatory work on Sunday. The Complainant filed a religious discrimination claim nearly four years after the Respondent instituted its policy. The complaint was timely under the continuing violation theory. Hyler v. Nekoosa Papers (LIRC, 01/28/91).

The Complainant indicated on the complaint form that the most recent date that the Respondent had discriminated against him was “daily.” However, the allegation in the handicap discrimination portion of the complaint clearly arose out of events which occurred more than 300 days prior to the filing of the complaint. The continuing violation theory is inapplicable to a single, completed act of alleged discrimination. Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination. Hyler v. Nekoosa Papers (LIRC, 01/28/91).

A layoff is not a continuing violation. Oehlke v. Moore-O-Matic (LIRC, 07/26/88).

The monthly retirement annuity of protective occupation employees is, under statute, reduced by a certain amount for each quarter year that elapses after a calendar year in which the participant obtains age 55. Complainant retired at age 55 in order to not have his benefits thus reduced. More than 300 days after his retirement, he filed a complaint of discrimination alleging that he was forced to retire because of that provision. This was not a continuing violation. A true continuing violation involves an employer's ongoing policy that affects the employee continually. Here, the employee is not complaining about how the provision affected his retirement benefit, since - because he retired at 55 - it is not affecting his benefits; he complains only that he was forced to retire at age 55. Pelikin v. DNR (Wis. Pers. Comm’n, 06/24/87).

The continuing violation theory may be seen as consisting of three sub-theories: (1) a continuing course of conduct or a series of acts with one independent discriminatory act occurring within the charge filing period; (2) the maintenance of a system or policy which discriminates; or (3) the present effects of past discrimination. The third sub-theory is no longer viable under United Air Lines Inc. v. Evans. Proof of the applicability of the first sub-theory requires demonstration of a series of acts that are sufficiently related in nature so as to transcend the time limitations. Discrete employment actions of a different nature occurring at different times may not be so related as to support a continuing violation theory. Poole v. DILHR (Wis. Pers. Comm’n, 12/06/85).

An employer's repeated refusals to rehire an employee do not constitute a continuing violation for the purpose of measuring timeliness. Peronto v. Leicht Transfer & Storage (LIRC, 03/02/84).

A complaint which challenges a job classification constitutes an allegation of continuing discrimination for purposes of measuring timeliness. Wis. Fed’n of Teachers v. Wis. Dep't of Pers. (Wis. Pers. Comm’n, 04/02/82).

A complaint by a woman that she was paid less than a similarly situated male employee states a claim of continuing discrimination. This is distinguishable from a discrete personnel transaction which, over the years, has a cumulative effect on an employee’s salary. Hoepner v. DHSS (Wis. Pers. Comm’n, 06/30/81).

A complaint against one agency for discriminatory wages was not timely when it was filed more than 300 days after the employee transferred to another agency; and the employee’s allegation that the lower wage paid by the first agency resulted in a lower entry wage paid to her by the second agency did not constitute continuing discrimination. Jacobson v. DILHR (Wis. Pers. Comm’n, 04/23/81).