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The US Supreme Court recently resolved a hotly contested legal issue that had spurred numerous conflicting viewpoints nationwide-whether an employee can recover damages for discriminatory/harassing acts that occurred outside of the statutory time limits for filing a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") under Title VII of the Civil Rights Act of 1964 ("Title VII"). Title VII requires that discrimination charges be filed within 300 days after the discriminatory act or event occurred.

Some federal appellate courts that considered this issue held that employees could recover for incidents occurring outside of the 300-day period if the untimely incidents were part of a continuing pattern of harassing conduct and "sufficiently related" to acts occurring within the statutory window. This legal theory is known as the "continuing violation doctrine." The Supreme Court "split the baby" on this issue, holding that discrete discriminatory acts such as termination, failure to promote, demotion, suspension, refusal to hire and retaliation are easy to identify and "occur" on the day they happened. Accordingly, the employee must file their EEOC charge within 300 days of the occurrence or lose the ability to recover for it. Employees can, however, still utilize these prior, untimely acts as "background evidence" to bolster their timely claims.

The Court, however, much to many employers’ dismay, held that hostile-environment harassment claims are different because they are comprised of a series of separate, isolated acts that collectively constitute one "unlawful employment practice." Employers, accordingly, may be liable for all acts that are part of a pattern of harassing conduct. For a discrimination charge to be timely in this situation, the employee need only file a charge within 300 days of any one act that is part of the hostile work environment. If they do so, all preceding harassing events or incidents, regardless of their respective untimeliness, will "piggyback" onto the timely-filed charge and provide the employee legal grounds for recovery.

This decision is bad news for employers because it now means that events or incidents that were once legally untimely no longer are. Employees are now free to reach far back into their employment relationship and breath new legal life into stale events or incidents that occurred months or years before the employee's timely filed discrimination charge. Equally bad is the fact these "old" allegations very well may have arisen under a different supervisor's watch such that the employer no longer has access to that supervisor or other material fact witnesses needed to refute the charge.

The Texas Commission on Human Rights Act, Texas' “Baby Title VII,” is patterned after the federal discrimination statute and Texas Courts are, accordingly, required to apply Title VII case law precedent in state law cases. This spells more bad news for employers at the state court level because it means the Supreme Court's recent decision will carry over into state forums and, like in federal cases, revive untimely harassment allegations filed under the state's fair employment practices statute.

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