The Supreme Court on Monday turned away a Black dancer’s appeal in her discrimination lawsuit against several Houston clubs, drawing dissent from two of the high court’s liberal justices.
Chanel Nicholson filed suit against the clubs in August 2021, claiming they maintained a racist policy which limited the number of Black dancers who could work the same shift, in violation of federal law prohibiting racial discrimination in making and enforcing contracts.
Nicholson said she was denied work repeatedly over the quota, including in 2014, 2017 and 2021. However, her case was dismissed by a district court that concluded the applicable statute of limitations clock began ticking in 2014; the U.S. Court of Appeals for the Fifth Circuit affirmed the decision.
She asked the justices to decide when the statute of limitations starts to run in a claim of “pattern or practice” of racial discrimination. They declined to hear her case.
But Justice Ketanji Brown Jackson wrote in a dissenting opinion, joined by Justice Sonia Sotomayor, that their fellow justices got it wrong by refusing to consider Nicholson’s appeal.
The appeals court panel determined that the more recent discriminatory acts against Nicholson were the “continued effects” of past race-based exclusion and, thus, not actionable on their own — a holding Jackson said “flouts this Court’s clear precedents.”
“We have long held that ‘[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act,’ regardless of whether similar instances of discrimination have occurred in the past,” she wrote. “Because the Fifth Circuit’s contrary ruling was patently erroneous, this Court should have granted Nicholson’s petition and summarily reversed the judgment.”
Jackson homed in on two instances where Nicholson was turned away: in November 2017 and August 2021.
Nicholson said a manager at one club, Cover Girls, told her she could not perform in November 2017 because there were already “too many Black girls” in the club. She took a hiatus from dancing between 2018 and 2021, but maintained her license and access agreements. Then, in August 2021, she attempted to return to performing at a club called Splendor — but a manager told her the club was “not taking any more Black girls.”
The alleged instances of discriminatory treatment violated her contractual right to “se[t] her own schedule” and “arrive and leave the premises at any time without penalty,” according to the dancer.
Jackson argued that both alleged “discrete” instances of discrimination occurred within the four-year period before Nicholson filed suit in August 2021. She called the 5th Circuit’s analysis of the statute of limitations “patently erroneous.”
“To conclude that Nicholson’s claims are time barred because there were earlier instances of discriminatory treatment, as the Fifth Circuit did, impermissibly inoculates the clubs’ more recent discriminatory conduct,” Jackson wrote.
“If sustained discriminatory motivation is all that is required to transform recent, racially discriminatory acts into the ‘continued effects’ of earlier discriminatory conduct, then past discrimination could inexplicably prevent recovery for later, similarly unlawful conduct,” she said.
