In its 1988-89 Term, the Supreme Court decided an extraordinary number of cases involving employment discrimination. That Term marked a shift in the Court’s attention from affimative action questions to other issues related to employment discrimination suits, such as procedural guidelines, attorney’s fees and the availability of actions under the Civil Rights Attorney’s Fees Awards Act of 1976. These recent decisions have set up a series of hurdles for people seeking to challenge discrimination by their employers. For example, it is now more difficult for a plaintiff to bring a valid cause of action, to win a case on the merits, or to settle a case out of court.
In Lorance v. AT&T Technologies, Inc., the Court placed certain potential employment discrimination claimants at a severe disadvantage by ruling that, where a seniority system is involved, the statute of limitations may begin running before the plaintiff is aware of any injury. Under the federal anti-discrimination statutes a plaintiff must either bring suit in court within the time required by the applicable state statute of limitations or file a charge with an appropriate agency within the required time. It is generally presumed that such time requirements serve notions of fairness, since a plaintiff should not “sleep” on her rights, and a defendant should be given adequate notice of a pending lawsuit. These are laudable goals, but Lorance raised a valid question: how can a plaintiff sleep on rights not known to be violated?
The Court in Lorance acknowledged the logic of this question but nonetheless held that the statute of limitations for challenging discriminatory seniority systems begins to run when the system is adopted, rather than when it first affects the plaintiff. In Lorance, a class of women plaintiffs, who were laid off by the defendant, brought suit claiming that their discharges were wrongful because they resulted from a discriminatory seniority policy adopted by the employer five years earlier. Although the plaintiffs brought suit almost immediately after they were laid off, the Court held that they should have filed their Equal Employment Opportunity Commission [hereinafter EEOC] charges within 300 days of the defendant’s adoption of the seniority provision.” Justice Scalia, writing for the majority, acknowledged the logic behind the argument that a seniority system is a continuing violation since it adversely affects an employee every day until it is changed through a new contract. Nevertheless, the Court refused to grant the plaintiffs relief, in part because of the special protection for seniority systems contained in section 703(h) of Title VII. As that section was interpreted by the Supreme Court in 1977, a facially neutral seniority system with a disparate effect on protected groups may nevertheless be legal unless the system is shown to have been developed or maintained with an intent to discriminate.
The decision in Lorance leads to some anomalous results and raises more questions than it answers. First, as Justice Marshall noted in his dissenting opinion, the majority requires “employees [to] now anticipate, and initiate suit to prevent, future adverse applications of a seniority system, no matter how speculative or unlikely these applications may be. Second, the decision may place the EEOC in the curious position of having to accept charges after every union bargaining session where seniority or similar rights are negotiated. However, a subsequent action on the alleged illegal bargaining agreement may be dismissed for lack of a case or controversy. Third, it is unclear whether and how the decision will affect pending cases involving seniority systems established before Title VII, when a plaintiff could not have challenged the system. Moreover, it is not clear whether the decision will be limited to seniority systems or possibly affect all similar practices such as pension plans. Finally, the decision casts doubt on the vitality of the “continuing violation” doctrine that has been well-recognized in Title VII cases for decades.
The addition of “sex” to Title VII, a classic story of opportunism, was only possible due to a long history of advocacy, and many congressional votes, in favor of the ERA.
Federal employment law should expand beyond the group-based protections established in Title VII to protect and promote an employee’s authentic self in the workplace.
As our comprehension of sex progresses towards an acknowledgment of its social construction, our interpretation of the protections provided by the phrase"because of ... sex" in Title VII should do the same.
Development of doctrine protecting employees from co-worker sexual harassment requires employer liability to ensure adequate remedies and title VII protections