"Three years means three years," the Michigan Supreme Court recently declared in Garg v. Macomb County Community Mental Health, as it overruled the "continuing violations" doctrine that has often been used by plaintiffs to avoid the three-year statute of limitations governing civil rights claims in Michigan. Since at least 1986 when the Supreme Court issued its opinion in Sumner v. Goodyear Tire & Rubber Co., plaintiffs have been able to rely on alleged discriminatory events occurring outside the three-year period if the "untimely" events were sufficiently connected to "timely" claims.

In its 1986 Sumner decision, the Michigan Supreme Court followed federal Title VII precedents in adopting the so-called "continuing violations" theory. Under this theory, a plaintiff can avoid the statute of limitations time-bar if the plaintiff can demonstrate that at least one violation had taken place within the limitations period. If so, the plaintiff can present evidence concerning discriminatory events occurring outside the threeyear statute by showing either "a policy of discrimination" or that the employer had engaged in "a series of allegedly discriminatory acts which are sufficiently related so as to constitute a pattern."

In determining whether the continuing violations theory should apply, courts historically considered three factors: (1) whether the alleged acts involved the same type of discrimination that tended to connect them in a continuing violation; (2) the frequency of the alleged acts or whether they were more in the nature of an isolated decision; and (3) the degree of permanence of the discriminatory act and whether it should have triggered an employee's awareness of and duty to assert his or her rights earlier.

As a result of Sumner, countless plaintiffs over the past two decades have been allowed to present evidence of alleged acts of discrimination that had occurred five or even ten years before the filing of the lawsuit. Given the realities of the workplace, this put employers in the difficult position of defending against stale claims that were often highly incendiary. This was permitted for various "policy" reasons, including the remedial nature of civil rights statutes, the notion that lay people may not realize they must act quickly or they will lose their rights (especially when fearing reprisal from an employer), and the difficulty of determining exactly when a series of discriminatory acts accrues into a legal claim.

In Garg, the Michigan Supreme Court reversed Sumner and rejected its underlying rationale. As has been its hallmark over the past several years, the Court majority began with the actual language of the statute of limitations governing civil rights claims in Michigan. The Court found that the language was unambiguous and that it was compelled to follow the legislature's clearly expressed intent. The statute states that a "claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results." Therefore, the Court concluded, a plaintiff must file a lawsuit within three years of each adverse employment act by a defendant, and that a plaintiff "shall not" bring a claim for injuries outside the limitations period. There is nothing in the statute that allows a claim outside the three-year period to be revived simply because it is "sufficiently related" to injuries occurring within the limitations period. The Court held that "to allow recovery for such claims is simply to extend the limitations period beyond that which was expressly established by the legislature."

Addressing the dissent's policy arguments that had been accepted in Sumner, the majority pointed out that it would be "utterly deconstructionist" to sustain the continuing violations doctrine which "bears no relationship to [the language chosen by] the legislature." The majority also noted that, because Michigan has a threeyear statute of limitations governing civil rights claims (as opposed to the short 180 or 300 day period allowed under Title VII), employees do not have to "act quickly or risk losing their cause of action" under Michigan law.

The Garg decision can also be read to exclude "untimely" acts of discrimination even as "background" evidence for "timely" claims. The Court majority twice stated that "once evidence of acts that occurred outside the statute of limitations period is removed from consideration, there was insufficient evidence" to support Garg's claim. Though some plaintiffs' counsel will argue that untimely acts should still be allowed as background evidence, or to show a bad actor's propensity to discriminate, or to show that the employer was on notice that one of its employees was a bad actor, the dissenting opinion seemingly confirmed the majority's more farreaching intent. Justice Cavanagh stated in dissent that the majority's holding not only abolished the continuing violations doctrine, but "goes even further and reasons that evidence of acts occurring outside the period of limitations must be excluded."

The Garg opinion has already had a significant impact on employment discrimination litigation in Michigan. The Michigan Court of Appeals has accepted appeals from trial court decisions allowing the continuing violations theory and has issued opinions emphasizing Garg's clearly stated rule for the statute of limitations - "three years means three years."

Eric J. Pelton

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