The application of “continuing violations doctrine” beyond “hostile work environment” claims
Here is a short explanation of relists. Here is a short explanation of relists.
The Supreme Court continued its recent trend of “promoting” the relisting of granted cases, by granting review in The Hain Celestial Group, Inc. The justices agreed to decide if a federal district judge’s final judgment in favour of the producer should be thrown out completely when the case was sent back to the court because the district judge shouldn’t have dismissed another defendant from the case, the grocery store chain Whole Foods.
The court declined to take up a second question presented in that case: whether a plaintiff may defeat diversity jurisdiction after the case is transferred to federal court by amending the complaint to add new factual allegations when the complaint at the time of removal did not state such a claim.
Turning to new business: There are 95 petitions and applications scheduled for this week’s conference. The justices will only be discussing one of them a second time, Nicholson v. W.L. York, Inc. dba Cover Girls, in which the justices have been asked to decide when the statute of limitations begins to run on a claim of a “pattern or practice” of racial discrimination.
Chanel Nicholson, an African-American dancer, sued several Houston-area clubs under 42 U.S.C. SS 1981 prohibits racial bias in contracting and enforcing agreements. Nicholson claimed that the clubs had an explicit and ongoing policy of limiting the number of Black dancers who could perform in a given shift. She claims that she was denied work repeatedly because of this quota in 2014, 2017 and most recently 2021. Nicholson sued the clubs in August 2021. The district court dismissed the case, concluding the four-year statute began to run on January 1, 2014, and that the claims were therefore barred. In a brief opinion per curiam, the U.S. Court of Appeals 5th Circuit affirmed. The 5th Circuit noted in Morgan that the Supreme Court had recognized the “continuing violation doctrine” whereby acts of discrimination are considered to be part of “one continuous violation,” and that an action will be timely if it is filed within the time limit. The 5th Circuit, however, said that this theory only applied to “hostile work environment” claims which Nicholson hadn’t pleaded. It concluded that “the act of discrimination that she alleges took place in 2021 … was merely a continuation of
original act of discrimination that she alleges took place in 2014, upon which the limitations period has already elapsed.”
Nicholson filed her petition pro se – by herself, as a layperson – but retained Supreme Court counsel in time to file her reply brief. She argues the circuits are split five to four over whether the continuing violation doctrine applies only to hostile workplace claims or if it also applies claims involving a practice or pattern of unlawful conduct.
The clubs opposing review argue that the incidents in 2021 where Nicholson claims she was denied entry to the workplace or not hired are merely effects of her original alleged discriminatory actions, and not new violations which reset the statutes of limitations. They also argue that there’s no real split among the appeals courts to warrant Supreme Court review. Rather, they say, the federal appeals courts uniformly apply the continuing violations doctrine only in hostile work environment cases, and not to revive time-barred discrete acts of discrimination.[the clubs’]
We should have a better idea soon whether the justices agree to hear Nicholson’s case in the fall. Until next time!
New Relists
[Disclosure: I am among Nicholson’s counsel.]Nicholson v. W.L. York, Inc. dba Cover Girls, 23-7490
Issue:
Whether the continuing violations doctrine applies to claims premised on a pattern or practice of discrimination, or instead applies only in the context of hostile work environment claims.
(Relisted after the April 25 conference. )
Returning RelistsApache Stronghold v. United States, 24-291
Issue
: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6, Dec. 13, Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, March 7, March 21, March 28, April 4, April 17 and April 25 conferences. )
Ocean State Tactical, LLC v. Rhode Island, 24-131Issues:
(1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, March 7, March 21, March 28, April 4, April 17 and April 25 conferences. )
Snope v. Brown, 24-203Issue:
Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, March 7, March 21, March 28, April 4, April 17 and April 25 conferences.)
L.M. v. Town of Middleborough, Massachusetts, 24-410Issue
: Whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
(Relisted after the Feb. 21, Feb. 28, March 7, March 21, March 28, April 4, April 17 and April 25 conferences. )
First Choice Women’s Resource Centers, Inc. v. Platkin, 24-781Issue: Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?
(Relisted after the April 4, April 17 and April 25 conferences. )
GHP Management Corp v. City of Los Angeles, California, 24-435
Issue
: Whether an eviction moratorium depriving property owners of the fundamental right to exclude nonpaying tenants effects a physical taking.
(Relisted after the April 17 and April 25 conferences. )
Posted in Cases in the Pipeline, FeaturedCases: Nicholson v. W.L. York, Inc., dba Cover Girls, Ocean State Tactical, LLC, v. Rhode Island, Snope, v. Brown, Apache Stronghold, v. United States, L.M. v. Town of Middleborough, Massachusetts, GHP Management Corp. v. City of Los Angeles, California, First Choice Women’s Resource Centers, Inc. v. Platkin
Recommended Citation:
John Elwood,
The application of “continuing violations doctrine” beyond “hostile work environment” claims
SCOTUSblog
(May. 2, 2025, 11:49 AM),
