Michael Starr, based in New York, is a partner in the labor and employment group at Washington, D.C.’s Hogan & Hartson. Adam J. Heft is an associate in that group.
The notion of a “continuing violation,” which allows discrimination claims that would otherwise be untimely to proceed, was given a major new interpretation by the U.S. Supreme Court in National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061 (2002). At first glance, the Morgan decision appears to give a boost to employers in its refusal to apply the continuing-violation doctrine to claims based upon what the Court called “discrete acts” of discrimination and retaliation. But proving the maxim that the hand that giveth taketh away, the Court applied the doctrine to hostile-work-environment claims, and did so in ways that may expand an employer’s exposure to claims in some unexpected ways.
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