Failure To Give Pay Raise More Than 3 Years Before Charge Is Still Actionable Under Title VII, At Least in Part

A black employee was promised a 45 cents per hour raise after his first six months, but did not receive it. Unfortunately, he did not recognize the error until more than three years later. When he did, he found that not only did he not get it, but white employees did. He filed a charge with the EEOC claiming that he did not receive the raise because of his race. The EEOC, and later the trial judge, both found his claim time barred as filed more than 300 days after the 'discrete act' of failing to give him the promised raise.



After appointing the pro se plaintiff counsel for his appeal, the 7th Circuit considered the issue and found the claim timely, at least for the paychecks received within 300 days of filing the charge. (The Court notes that plaintiff had wisely abandoned claims to anything outside that time period.) After discussing some confusing precedents within the circuit, the Court found that in its most recent consideration of this issue, the Supreme Court had left what it called a:

... narrow channel for Title VII plaintiffs who wish to complain that their paychecks, in compensation for work they have presently performed and completed in pay periods within the limitations period, are discriminatorily low because of an earlier act that occurred outside the limitations period. Each paycheck is the kind of discrete act to which the Court referred in National Passenger Railroad Corp.; thus checks corresponding to pay periods before the 300 day time limit are time-barred, but those within it may form the basis of claim.

Reese v. Ice Cream Specialties, Inc. (7th Cir. 10/30/03) [pdf]. Interestingly, although the Reese court seemed to imply that this would be a rather rare circumstance, a different panel of the 7th Circuit was coming to a similar conclusion in a different case on the same day. Hildebrandt v. Illinois Dept. of Forestry (7th Cir. 10/30/03) [pdf].