“A New Clock for Every Act” – The Supreme Court’s (Non-)Decision in Nicholson v. W. L. York, Inc. and the Reaffirmation of Discrete-Act Accrual Under 42 U.S.C. § 1981

Introduction

In Nicholson v. W. L. York, Inc., the United States Supreme Court denied certiorari, leaving intact a Fifth Circuit ruling that dismissed as time-barred Chanel Nicholson’s claims of intentional race-based exclusion under 42 U.S.C. § 1981. Although the Court issued no majority opinion, Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, penned a forceful dissent. Her writing reiterates an essential limitations principle: every discrete act of discrimination triggers its own four-year statute-of-limitations period, irrespective of similar earlier conduct. Because the Fifth Circuit treated the 2017 and 2021 exclusions merely as “continued effects” of discrimination dating back to 2014, Justice Jackson argued the panel “flout[ed]” clear Supreme Court precedent.

The case centers on two Houston adult-entertainment clubs—Splendor and Cover Girls—owned by respondent W. L. York, Inc. Nicholson, an African-American dancer, alleged she was repeatedly prevented from working when management decided “too many Black dancers” were already present. The core legal dispute: When does the § 1981 clock start running? On that narrow but pivotal question, the dissent contends the Fifth Circuit went astray, and the Supreme Court’s refusal to intervene leaves uncertainty in an area previously thought settled.

Summary of the Judgment

• Disposition: Certiorari denied; no majority opinion.
• Dissent: Justice Jackson (joined by Justice Sotomayor) would have summarily reversed, holding Nicholson’s claims timely.
• Main Holding of the Dissent: Each alleged denial of entry (2017 and 2021) is a discrete, individually actionable act of race discrimination. Under National R.R. Passenger Corp. v. Morgan, each such act starts “a new clock” for filing. The Fifth Circuit’s contrary view misapplied the “continuing effects” concept and conflated hostile-environment theory with discrete acts.

Analysis

1. Precedents Cited and Their Influence

• National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)
  The cornerstone precedent. Morgan distinguished discrete acts (e.g., firing, promotion denial) from hostile environment claims. For discrete acts, “each incident of discrimination … starts a new clock.” Justice Jackson treats Morgan as dispositive; the Fifth Circuit, in her view, ignored it.
• Delaware State College v. Ricks, 449 U.S. 250 (1980) & Chardon v. Fernández, 454 U.S. 6 (1981)
  Both cases emphasize that the accrual date is the moment the discriminatory decision is made and communicated, not when its later consequences are felt. But those cases involved a single discriminatory decision with lingering neutral effects, not multiple discriminatory decisions. The dissent uses them to illustrate the distinction between “delayed consequences” and new discriminatory acts.
• Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004)
  Clarifies that the four-year limitations period in 28 U.S.C. § 1658 applies to post-1990 amendments to § 1981, including claims concerning contract performance.
• Comcast Corp. v. National Ass’n of African American-Owned Media, 589 U.S. 327 (2020); General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982)
  Cited for the substantive standard: § 1981 liability exists when race is a but-for cause of contractual injury.

2. The Court’s (Dissent’s) Legal Reasoning

Justice Jackson proceeds in three logical steps:

1. Define the Claim Type. Nicholson pleads discrete discriminatory acts—being denied entry on specific dates—rather than a “pattern or practice” or “hostile work environment.”
2. Apply Morgan’s Rule. Because each denial is itself discriminatory, each triggers its own four-year window. The 2017 and 2021 denials occurred within four and zero years of the August 2021 filing, respectively, rendering both claims timely.
3. Reject the Fifth Circuit’s “Continued Effect” Theory. The panel analogized the later denials to the lingering consequences in Ricks. Justice Jackson counters that the later denials were not neutral fallout but fresh discriminatory decisions—precisely what Morgan protects. Calling them “continued effects” collapses discrete-act analysis into hostile-environment logic and grants bad actors a perverse immunity: the first illegal act starts a ticking clock on future illegal acts.

3. Potential Impact

Although technically dicta in a dissent, Justice Jackson’s opinion carries influence:

• Signal to Lower Courts. Her admonition warns courts—particularly in the Fifth Circuit—that treating recurrent discrimination as time-barred invites summary reversal.
• Litigant Strategy. Plaintiffs can frame recurrent denials, rejections, or exclusions as discrete acts, preserving claims even when similar conduct occurred earlier.
• Employer/Business Policies. Entities engaging in repeated discriminatory gatekeeping cannot rely on an “overall policy” theory to immunize later acts.
• Future Supreme Court Review. The conspicuous dissent may encourage a later grant of certiorari in a similar case, setting up a definitive majority ruling if circuit splits deepen.

Complex Concepts Simplified

• Discrete Act vs. Continuing Violation
  • Discrete Act: A single, complete event (e.g., firing, refusal of service) that can be sued upon immediately.
  • Continuing Violation (Hostile Environment): Unlawful conduct becomes actionable only in the aggregate (e.g., pervasive harassment). For these, the clock starts at the last contributing act.
• “Continued Effects” Doctrine
  Even if an old discriminatory decision keeps harming someone, those later harms don’t restart the clock unless they are new discriminatory acts.
• Accrual
  The moment when the statute of limitations begins to run.
• Statute of Limitations under § 1981
  Four years for contract-performance claims. Miss the window and the claim is barred, regardless of merit.
• Certiorari Denied
  The Supreme Court declined to review the case. This leaves the lower-court judgment intact but sets no nationwide precedent. Dissents from denial, while non-binding, often clarify doctrine and shape future litigation.

Conclusion

Nicholson v. W. L. York, Inc. offers a cautionary tale on limitations analysis under § 1981. While the Supreme Court did not reverse the Fifth Circuit, Justice Jackson’s dissent powerfully restates a core principle from Morgan: every discrete discriminatory act restarts the limitations clock. By labeling fresh denials of entry as mere “continued effects,” the Fifth Circuit, in her view, effectively allowed longstanding discrimination to become a shield against accountability for new wrongdoing. Whether future panels heed this warning or await an inevitable grant of certiorari, the dissent underscores that statutory time bars cannot be manipulated to launder repeat violations. Advocates and courts alike should treat each actionable refusal, termination, or exclusion on racial grounds as the law already demands—anew, with its own four-year chance at redress.