Wednesday, August 13, 2008
You might remember that the House passed the Paycheck Fairness Act a couple of weeks ago. Meanwhile, at the end of June (although it slipped under my radar), Senator Kay Bailey Hutchison (R-Texas) introduced into the Senate a rival bill, entitled the "Title VII Fairness Act." That legislation would amend Title VII to include language about the importance of short and definite limitations periods in the employment context and would make clear that a cause of action under Title VII would accrue when a person first had a reasonable suspicion that he or she was the subject of unlawful discrimination, and that the limitations period should be strictly construed. The bill also would create a discovery rule. The person must file a charge with the EEOC within the applicable 180 or 300 day window, depending on jurisdiction, unless "the person aggrieved demonstrates that the person did not have, and should not have been expected to have, enough information to support a reasonable suspicion of such discrimination, on the date on which the alleged unlawful employment practice occurred." A notable thing about this bill is that it is not limited to pay claims, but would apply to any Title VII claim.
The discovery rule is an appropriate addition for enforcing Title VII. Certainly, it seems unjust that a person's right to relief should be foreclosed before she has any idea that she might have a right to relief. And although the objective component might be difficult to gauge, it, too seems reasonable in that it avoids rewarding people who really sleep on their rights.
At the same time, though, this would confuse rather than clarify the continuing violation doctrine, I think. It talks about a date on which "the" unlawful employment practice occurred. That date is relatively clear, although not always, when we're talking about a firing, hiring, or promotion. But it is a lot less clear when we're talking about terms and conditions discrimination, like continuing to pay someone less because of sex. And particularly in a situation like hostile environment harassment, which doesn't necessarily have a single date at which the harassment becomes severe enough, this rule could complicate the accrual question even more than it already is complicated. And that's plenty.