Past Acts of Discrimination Can Come Back to Haunt You: Ninth Circuit Rules on “Continuing Violation” and Background Evidence Theories

Volume 2, Issue 6
June 2, 2003

In Raad v. Fairbanks North Star Borough School District, a female Lebanese teacher sued for national origin and religious discrimination and retaliation after she was denied a full-time teaching position for three successive school years, from 1991 to 1993. Prior to her lawsuit, she filed a Charge of Discrimination with the state agency in September 1993. Given that the limitations period for alleged discriminatory acts is 300 days after their occurrence, the Ninth Circuit held that the earlier failures to hire Raad - in 1991 and 1992 - were time-barred. However, the Court allowed Raad to use these untimely earlier incidents as "background evidence" in order to put her 1993 failure to hire claim into context. As a result, the Ninth Circuit overturned the lower court's favorable ruling for the school district, and sent the case back for trial.

The Raad case serves as yet another reminder to employers as to how employees can resurrect stale claims of alleged discrimination. Last year, the Supreme Court decided that untimely discrete acts of discrimination (i.e., failure to hire or promote) could not be bootstrapped to a timely claim. However, such aggregation could occur if the employee claimed a hostile work environment where all of the acts could be viewed as contributing to the hostile work environment (under the "continuing violation" doctrine). The Supreme Court further stated that a stale claim could still be introduced as relevant background evidence, even though not actionable itself, to put the timely-asserted claim into proper context. The Ninth Circuit in Raad followed the Supreme Court's lead, and allowed the use of such background evidence.

The practical impact of Raad is to alert employers that even older, stale claims of harassment and discrimination are never truly out of the picture. They can be bundled together with more recent allegations if a continuing violation is shown. Even if distinct and separate, they can still be used to frame the employee's timely claim under the guise of background evidence. Employers should therefore be cautious to make sure that all allegations of harassment and discrimination are dealt with effectively at the earliest possible time, since they are quite likely to come back to haunt employers much later.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.