Title VII of the Civil Rights Act of 19641 is one of the most effective federal anti-discrimination statutes in employment discrimination law. Enforcement of this statute has eliminated discriminatory acts directed at individual victims as well as discriminatory policies and practices directed at groups that traditionally have been victims of discrimination. The effectiveness of Title VII in eliminating employment policies that restrict opportunities for a group or class of employees (referred to as systemic discrimination) has been particularly important because of the economic, psychological, and social consequences that this discrimination has on members of the group as a whole. Also, this type of discrimination conflicts with fundamental constitutional principles of equality on which this society is based.
Since enactment of Title VII, private plaintiffs have played a major role in the elimination of systemic discrimination. Class action lawsuits and individual litigation by private plaintiffs have resulted in the elimination of discriminatory tests, seniority systems, height and weight requirements, and other policies and practices that have prevented blacks, Hispanics, women, older workers, and other minorities from achieving their employment potential. Despite the role that private plaintiffs have played in eliminating systemic discrimination, some courts have begun restricting the right to challenge this discrimination by interpreting narrowly the procedural provisions of Title VII, which makes it difficult for private plaintiffs even to file charges alleging systemic discrimination. One procedural issue that threatens to restrict the private plaintiff's ability to challenge systemic discrimination is court interpretation of the continuing violation theory.
The continuing violation theory, considered to be one of the most confusing theories in employment discrimination law,-- is a procedural theory developed by courts that modifies the normal statute of limitations when the employer's discrimination exists prior to and during the limitations period.
Thelma A. Crivens,
The Continuing Violation Theory and Systemic Discrimination: In Search of a Judicial Standard for Timely Filing,
41 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol41/iss6/2