Does Each Incident of Discrimination Constitute a Seperate Actionable 'unlawful Employment Practice' ?
Does Each Incident of Discrimination and Retaliatory Adverse Employment Decision Constitute a Seperate Actionable 'Unlawful Employment Practice' ?
In AMTRAK v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), the Supreme Court addressed the "continuing violation" theory under Title VII.
It rejected a claim that discrete injuries, including a failure to promote the plaintiff, arising outside the 300-day limitations period were actionable as part of a continuing violation the Court noted that 42 U.S.C. 2000e-2 explains "unlawful employment practices" in great detail, including discrete acts such as failure to hire.
The Court stated:
"Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'" Morgan, 536 U.S. at 114.
Plaintiffs stress in their reply brief that this Court has acknowledged that under Morgan "[e]ach discrete act, therefore, constitutes a separate actionable unlawful employment practice, and starts a new clock for filing charges alleging that act." Barra v. Rose Tree Media School District, 858 A.2d 206, 213 (Pa. Cmwlth. 2004).
See also Ledbetter v. Goodyear Tire & Rubber Co.U.S, 127 S. Ct. 2162, 2169, 167 L. Ed. 2d 982 (2007) (citing Morgan, 536 U.S. at 113):
"But of course, if an employer engages in a series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed."