The continuing violation theory—an equitable exception to the two-year statute of limitations applicable to claims brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD)—has been described by our New Jersey Supreme Court as “one of the most confusing theories in employment discrimination law.” Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 18 (2002).

A recent and informal survey of members of the Sidney Reitman Employment Law American Inn of Court—whose members include leading employment law practitioners throughout the state—echoes the Supreme Court’s conclusion. The survey asked Inn members whether they believe the continuing violation theory only applies to hostile work environment claims under the LAD, and to elaborate upon any ruling they received in the law division concerning the doctrine’s application. The results revealed a sharp divide among these employment lawyers regarding the limits of the continuing violation theory. A very slight majority (52 percent) opined that the doctrine is limited to hostile work environment claims. The remaining responses did not believe any such limitation exists. The survey results further indicated that trial judges throughout the state variably apply the doctrine, with some limiting the theory’s application to hostile work environment claims and others applying it more expansively. The result of the confusion and inconsistent rulings is that the LAD’s statute of limitations is unpredictably applied in the trial courts, rendering as viable, claims that otherwise would be stale.

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