The New Jersey Law Against Discrimination (“LAD”) requires that actions alleging discrimination must be filed within two years from the date of the alleged violation. However, in some instances, determining when the statute of limitations period should begin to run can be difficult to ascertain. To help in reaching this determination, the Courts have often looked at the nature of the alleged violations. In doing so, violations are often categorized as either “continuing violations” or “discrete acts”.
Under the “continuing violation” doctrine, a plaintiff in an LAD claim can commence an action for a violation occurring outside of the statute of limitations period if it can be demonstrated that each alleged violation is part of a pattern or policy of discrimination and that at least one of the acts occurred within the statutory limitations period. (See, Montells v. Haynes, 133 N.J. 282 (1993). If these criteria are satisfied, a plaintiff may recover damages incurred as a result of the continuing violation.
However, under the “discrete act” theory, each alleged violation is deemed a single act which is separately actionable on its own. As a result, the statute of limitations period for “discrete acts” begins to run on the day that the alleged violation occurs.
In Alexander, et al. v. Seton Hall University, et al., 2009 WL 4572344 (N.J. Super. A.D. Dec. 7, 2009), the Appellate Division dismissed a claim filed by three long term Seton Hall University female faculty members who alleged age and sex discrimination in pay and benefits, in violation of the LAD Act. The Appellate Division affirmed the trial court’s dismissal of Plaintiff’s action on the grounds that it was time barred.
The Court held that the violations complained of by Plaintiffs were “discrete acts” which occurred more than two years prior to the filing of the lawsuit, and thus fall outside the LAD’s two year statute of limitations period. The Court concluded that an employer’s decision to set an employee’s pay or salary is a “discrete act”which commences the running of the statute of limitations. This, the Court reasoned, was consistent with the United States Supreme Court’s ruling in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L. Ed.2d 982 (2007), where the Court held that any discriminatory pay decision is a “discrete act” that could trigger the two-year statute of limitations. The Court held that the Supreme Court’s ruling in Ledbetter was controlling in the present case.
Plaintiffs argued that the University’s discriminatory acts fell within the guise of the “continuing violations” doctrine. Plaintiffs argued that the University’s discriminatory conduct “continued” until well within two years of the Complaint as the discriminatory act was manifested with each pay check it issued.

The Alexander Court did consider the impact of the Ledbetter Act…

Plaintiffs’ contention is significantly similar to the language contained in Congress’ recently passed Lilly Ledbetter Fair Pay Act of 2009 (“Ledbetter Act”). The Ledbetter Act amends Title VII of the Civil Rights Act of 1964 to establish that the statute of limitations period in pay discrimination actions does not run from the first act of discrimination, but rather, it is re-set every time an employee receives a discriminatory paycheck. This amendment was in response to United States Supreme Court’s ruling in Ledbetter. The Ledbetter Act essentially eliminates the “discrete act” theory from pay discrimination actions and opens employers up to claims stemming from acts which occurred well in the past.
The Alexander Court did consider the impact of the Ledbetter Act in its ruling and determined that it was not yet applicable in New Jersey. The Court noted that the current LAD Act has not been amended to include the Ledbetter Act’s language, thus affecting its construction. As such, the Supreme Court’s decision in Ledbetter remains controlling law in the State of New Jersey and “discrete acts” still trigger the running of the statute of limitations.
Based on Alexander, the Ledbetter Act will have little if any impact on wage discrimination actions brought in New Jersey State Court for the time being. The statute of limitations defense will remain a viable defense in these claims, but, for how long? It remains to be seen if the New Jersey State Legislature chooses to amend the LAD Act to incorporate the Ledbetter Act’s language; but for now, all remains status quo.

Russ M. Patane, Esq.