United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

Return to Table of Topics, 503 Index

Contractor did not commit a continuing violation by failing to pay the complainant's back wages or by failing to rehire the complainant after new medical evidence was submitted which allegedly demonstrated that complainant was capable of returning to work. OFCCP v. CSX Transportation, Inc., 88-OFC-24, ALJ Order Granting Motion to Dismiss, March 23, 1990, slip op. at 4, remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994; Case closed, January 17, 1996.

A continuing violation is one in which there is a prevailing scheme of alleged discrimination. Id. at 5; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994; Case closed, January 17, 1996.

Contractor's decision to disqualify complainant from employment as a track repairman for medical reasons was a single act and, although the complainant suffered the effects of the act, the act only occurred once. Ibid.; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994; Case closed, January 17, 1996.

A continuing violation occurs where there is a "dogged pattern" of discriminatory treatment instead of "a discrete, consummated, immediate violation." OFCCP v. Cissell Manufacturing Co., 87-OFC-26, ALJ Rec. Dec. and Order, May 22, 1992, slip op. at 11, affirmed on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Three factors should be considered to determine if a continuing violation occurred: 1) subject matter; 2) frequency and 3) degree of permanence. Ibid.; affirmed on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Contractor committed a continuing violation by enforcing a "no light duty policy," which initially forced employee off his regularly assigned job; by continuing to demand that employee have all restrictions removed before he could return to his regular duty; and by notifying employee of the permanent act of termination unless all medical restrictions were eliminated. Ibid.; affirmed on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Contractor's decision to terminate complainant because of his monocular vision does not constitute a continuing violation. OFCCP v. Norfolk & Western Railway Co., 93-OFC-4, ALJ Rec. Order Granting Motion for Summary Decision, slip. op. at 4; remanded, Assistant Secretary Order of Remand for Discovery, July 20, 1995.

In granting summary judgment for contractor on the grounds that complaint was not timely filed, ALJ finds that the Director of OFCCP erred in finding good cause for the late filing because 1) the OFCCP Director erred in finding a continuing violation; 2) the complaint was filed more than two years after the alleged violation; and 3) the contractor had posted notices regarding employees' Rehabilitation Act rights. Id. at 4-5; remanded, Assistant Secretary Order of Remand for Discovery, July 20, 1995.

A complaint alleging a violation of Section 503 filed by a complainant with OFCCP is timely, if an incidence of repeat violation occurs within 180 days of the filing of the complaint. OFCCP v. CSX Transportation, Inc., 88-OFC-24, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994, at 14-16; case closed January 17, 1996.

Continuing violation can be relevant to the timeliness of a complaint, or to the issue of relief. Id. at 22-24.

An Administrative Law Judge must assess the existence of a continuing violation by applying the factors set forth in Elliot v. Sperry Rand Corp., 79 F.R.D. 580 (D. Minn. 1978). There are several different fact patterns which the courts have considered under the continuing violation theory. Id. at 22-25.

The degree of relief available to a complainant who alleges a continuing violation is contingent on the ALJ identifying the initial discriminatory incident, and determining that the initial incident and the continuing events are sufficiently linked. Id. at 25.

OFCCP's continuing violation theory cannot rely on the mere conclusory allegations . . . of its Administrative Complaint of repeated violations against the complainant. OFCCP v. Burlington Northern, Inc., 80-OFCCP-6, Special Assistant to the Assistant Secretary for Employment Standards, Final Decision and Order of Dismissal, December 11, 1991, Burlington at 7.

Absent evidence that a complainant denied employment continued to seek employment with Burlington on or after the effective date of [new regulations implementing Section 503], a continuing violation could not be found. Id. at 8.

Burlington's single refusal to hire does not constitute a continuing violation. Id. at 8.

[A] single refusal to hire does not constitute a continuing violation, therefore OFCCP's characterization of the complainant's single rejection as a continuing violation predicated upon Burlington's purported policy against hiring insulin dependent diabetics is also erroneous. Id. at 9.