The thunderous shuffle of feet you recently heard is the sound of plaintiff and defense attorneys scurrying to check whether any of their cases contain allegations of discrimination occurring beyond the Michigan Elliott-Larsen Civil Rights Act's three- year statute of limitations.

The impetus of this recent "stampede" is the 4-3 decision by the Michigan Supreme Court in Garg v. Macomb County Community Health Services that the "continuing violations" doctrine is contrary to the language of the three-year limitations period for discrimination claims. The majority emphatically said that "the doctrine has no continued place in the jurisprudence of this state."

The result of this ruling is that under Michigan law, plaintiffs cannot file claims for alleged discriminatory acts that occurred more than three years before the lawsuit is filed.

On July 21, 1995, Sharda Garg sued her employer, alleging that she had been retaliated against for filing a grievance for national origin discrimination in 1987 and for opposing sexual harassment in the early 1980s.

Garg alleged she was denied several promotions from 1986 through 1997 in retaliation for her actions. The trial court permitted the alleged evidence of discrimination beyond the three-year statute of limitations based on the continuing violations doctrine established in 1986 by the Michigan Supreme Court in Sumner v. Goodyear Tire & Rubber Co., 427 Mich. 505 (1986). After a jury verdict of $250,000, the Michigan Court of Appeals affirmed the decision, citing Sumner.

The plaintiffs' bar decried the court's decision in Garg as a miscarriage of justice, saying it prevents serious wrongs from being redressed. Attorneys for Garg quickly filed a motion for rehearing with the Supreme Court, arguing that the "opinion contains several serious legal errors which will have an enormous impact on cases brought under Michigan's civil rights statutes and may well have an overwhelming effect on all litigation in this state."

Defense counsel, meanwhile, are cautiously optimistic that the decision will reduce the number of stale discrimination claims filed against employers.

In Sumner, the Michigan Supreme Court relied heavily on federal precedent to conclude that the "continuing violations doctrine" applied to discrimination claims brought under Michigan civil rights statutes.

The Sumner opinion stated that expanding the application of the continuing violations doctrine was appropriate because "[f]irst, [the Civil Rights Act] is a remedial statute whose purpose is to root out discrimination and make injured parties whole. Second, employees are generally lay people, who do not know that they must act quickly or risk losing their cause of action.

"An employee may fear reprisal by the employer, or may refer the matter to the union, which may not take any action within the limitation period. Employees may also delay filing their complaints in the hope of internal resolution or simply to give the employer a second chance. Third, and most importantly, many discriminatory acts occur in such a manner that it is difficult to precisely define when they took place. One might say that they unfold rather than occur."

The court in Sumner explained that a plaintiff established a continuing course of discriminatory conduct where he or she proved that a series of allegedly discriminatory acts were "sufficiently related" so as to constitute a pattern.

One of these acts must have occurred within the limitations period. Once a plaintiff could show an actionable incident within the limitations period, he or she must still demonstrate that the time-barred acts met the Sumner test for a "continuing course" of discriminatory conduct.

Under Sumner, courts had to consider the subject matter of the alleged discrimination, the frequency of the alleged acts of discrimination and the degree of permanence of the acts.

Although recognizing that some wrongs may go unredressed, the Garg majority ruled that the lack of a remedy for claims based on events more than three years in the past was outweighed by the benefit of extinguishing stale claims of discrimination and applying a clear statute of limitations rule which could be readily understood by everyone, not just practicing attorneys. The majority opinion recognized that statutes of limitations exist in large part because memories fade and witnesses and evidence may no longer be available.

In so holding, the majority in Garg noted that although the continuing violations doctrine may be workable and even desirable, it was not contemplated by the Michigan Legislature when they drafted the three-year statute of limitations.

The majority also relied heavily on the statutory differences between Title VII and the ELCRA. Specifically, the majority noted that Title VII was amended in 1972 to expand the statute of limitations from 90 days to 180 days to file a charge with the EEOC and also to permit recovery for back pay for up to two years. According to majority's reasoning, the 1972 amendments to Title VII implicitly endorsed the theory of continuing violations under federal law. No such language or amendments exist under Michigan law, thus compelling the majority to enforce the statute of limitations as written.

According to the majority, "to allow recovery for such claims is simply to extend the limitations period beyond that which was expressly established by the Legislature."

The Garg majority also explicitly rejected the Sumner opinion's justifications for applying the continuing violations doctrine in Michigan.

According to the Garg majority, "[i]n Michigan, an employee does not have to 'act quickly or risk losing their cause of action' under the state Civil rights Act but has up to three years to assert a claim in contrast to the 180 days allowed under Title VII. This extended period would also presumably accord an employee sufficient time to seek 'internal resolution or simply give the employer a second chance' without endangering her claim. Further, at least some reasonable observers might presume the three-year limitations period accords an employee sufficient time to determine that a discriminatory act has truly 'unfolded.'"

Assuming that the Michigan Supreme Court declines to revisit its opinion, at least three open questions arguably remain under the Garg decision: (1) whether Garg applies to hostile environment claims and if so, when does a cause of action accrue; (2) whether Garg limits evidence of predisposition to discriminate; and (3) whether Garg limits the scope of discovery regarding alleged discriminatory events or intent beyond the three-year statute of limitations.

Because the specific issue in Garg dealt with discrete acts of retaliation, the plaintiffs' bar will likely argue Garg should not be expanded to hostile environment claims. This limited application of Garg seems unlikely, however, given the majority's specific reference to Nat'l R. Passenger Corp. v. Morgan, 536 U.S. 107 (2002).

In Morgan, the U.S. Supreme Court ruled that the continuing violations doctrine should not apply to discrete claims, such as failure to promote, but held that "a charge alleging hostile a hostile environment claim [under Title VII], however, will not be time barred so long as all acts which constitute part of the claim are part of the same unlawful employment practice and at least one act falls within the period." Morgan, 536 U.S. at 122.

Although not addressing Morgan directly, the majority in Garg implicitly rejected Morgan in lengthy footnote discussions.

In footnote eight, the majority dismisses the dissent's concern that it is often difficult to "determine when discriminatory acts have taken place or when civil rights claims have accrued or manifest themselves, whether an act of discrimination is 'discrete or nondiscrete," and that even discrete acts of discrimination may not be readily identifiable."

According to the majority, "there are difficult evidentiary issues in the realm of civil rights as in most of realms of the law. Such difficulties, however, do not constitute authorization for ignoring the express direction of the Legislature that violations of the Civil Rights Act are to be subject to a period of limitations, one that is 2 ? years longer than the federal period of limitations."

In footnote 14, the majority also rejected the dissent's invitation to follow federal law under Morgan and "allow acts falling outside the period of limitations to be admissible 'as background evidence in support of a timely claim." According to the majority, this rule "would allow the plaintiff to resuscitate stale claims and require a defendant to defend against such claims in the face of the passage of time, fading memories, and the loss of witnesses and evidence."

Garg may also be cited in support of arguments to limit evidence of a predisposition to discriminate or to limit the scope of discovery to evidence arising within the three-year statute of limitations.

In the 19 years since Sumner first gave rise to the continuing violations doctrine in Michigan, plaintiff and defense counsel have argued over the scope of relevant and admissible evidence. Prior to Garg, there was no clear answer as to these issues.

Garg does not clearly answer these questions. On reconsideration, Garg could provide plaintiff and defense counsel with more clarity as to what evidence is relevant - perhaps beyond employment related claims.

The scope of the Garg decision may be likely determined in coming months if the Supreme Court accepts plaintiff's motion for rehearing. In light of the majority's desire to provide clarity regarding the statute of limitations, the court may grant the plaintiff's motion to address the open evidentiary questions raised by the initial decision.

Without clarity on the issues left unanswered by Garg, the EEOC and the federal district courts may see an influx of hostile environment claims being filed that historically were filed in state court. Until then, employers, employees and their attorneys will be strictly held to the three year statute of limitations as enunciated by the majority in Garg.

Christopher M. Trebilcock is an associate in the labor and employment group at 340+-lawyer Miller Canfield concentrating his practice in labor and employment litigation. The author thanks his colleagues for all of their insights regarding the important decision discussed in this article. He can be reached at (313) 496-7647 or trebilcock@millercanfield.com. For more information on Michigan-based Miller Canfield, visit www.millercanfield.com.