Labor & Employment Law Daily Wrap Up, SUPREME COURT NEWS—Justices strongly dissent from Court’s denial of cert in adult entertainer’s race case, (Jun 3, 2025)

By Brandi O. Brown, J.D.

The Fifth Circuit’s holding that the dancer’s claims were time-barred “flouts this Court’s clear precedents,” wrote Justice Jackson, joined by Justice Sotomayor.

In an order list issued yesterday by the Supreme Court, Justice Jackson, joined by Justice Sotomayor, dissented from the Court majority’s decision to deny the petition for a writ of certiorari filed by a Black adult entertainer in a race bias case. The dancer had sued the clubs that she alleged repeatedly denied her the ability to perform because of her race. She argued that the Fifth Circuit had erroneously ruled that her Section 1981 claims were time-barred.

“Too many black girls.” Specifically, the dancer claimed that on numerous occasions between 2013 and 2021, even though she had signed agreements to perform at the establishments, she was barred from performing several nights per week at two clubs (Splendor and Cover Girls), owned and operated by the same individuals, because they already had “too many black girls” performing that night. She alleged that race discrimination was rampant at both clubs, which were “well-known” to “severely limi[t] the total number of Black Dancers on their respective premises” because “upper management did not want too many Black Dancers” present on any given night. One former manager confirmed that it was “widely known and well-accepted that black (African American) girls generally are not given positions as dancers in these” establishments and attested also that when the clubs’ director of operations discovered that the manager had hired African-American dancers at Cover Girls, he revoked the manager’s hiring privileges.

The dancer alleged that she was denied work so many times prior to 2017 because there were already “too many black girls” present in the club that she stopped performing at one of the clubs. She took a hiatus from dancing entirely beginning in 2018 but returned to dancing in 2021. She tried to return to performing at one of the clubs (Splendor) in August 2021 but was turned away because they were “not taking any more black girls.” She saw a white dancer enter the club at approximately the same time.

Lawsuit and appeal. She filed a lawsuit, alleging violations of Section 1981 based on racial discrimination, but the district court ultimately granted summary judgment in favor of the clubs on the ground that her claims were untimely. The Fifth Circuit affirmed because, in its view, the dancer “was first denied access to Splendor’s premises as early as a week after signing her [License and Access Agreement] in September 2014,” and that same discriminatory treatment had merely “continued.” Therefore, the court concluded that her “claims of unlawful discrimination began to accrue in 2014,” because she “was first turned away by Splendor for a discriminatory reason in 2014 and, when she checked back in with Splendor in 2021, nothing had changed.”

Thus, according to the Fifth Circuit, “her denial of access to the club... on account of her race” in 2021 was “merely a continued effect of the first alleged discriminatory act that took place in 2014.” The panel reached the same conclusion regarding the other club, determining that her claim against Cover Girls began to accrue in 2016.

The dancer filed a petition for a writ of certiorari with the Supreme Court, but it was denied by a majority of the Justices. Justices Jackson and Sotomayor dissented and Jackson wrote a separate dissent, which was joined by Sotomayor.

“Patently erroneous” decision. “The Fifth Circuit’s analysis of the statute of limitations is patently erroneous under our longstanding precedents,” wrote Justice Jackson. “Discrimination claims concerning contract performance are subject to a four-year statute of limitations” and “[f]or claims involving discrete acts of discrimination, that statute of limitations commences on the date of the alleged discriminatory act.”

“Textbook example.” In this case, Justice Jackson explained, the complaint alleged two discrete, timely instances of discriminatory treatment by the clubs’ managers and employees. The dancer claimed that both clubs prevented Black dancers from working at the clubs if what the club deemed was a sufficient number of other Black dancers were already present. Particularly, she alleged that she was barred from entering the clubs because of her race in November 2017 and August 2021, even though she had a contractual right to “se[t] her own schedule” and “arrive and leave the premises at any time without penalty.”

“Thus, as alleged in her complaint,” Justice Jackson wrote, “Nicholson suffered two adverse and discriminatory actions—race-based exclusion from the clubs on two occasions—that took place within the four-year limitations period. This constitutes a textbook example of actionable conduct under §1981.”

Not like “continued effects.” Justice Jackson explained that this was different from other cases wherein the initial decision was discriminatory, but later nondiscriminatory, neutral decisions are “continued effects.” For example, she observed, the decision to deny a professor tenure was race-based, but a later university decision to discharge the professor under a racially neutral policy applicable to all faculty who had been denied tenure was a “continued effect.” In that case, the original tenure decision starts the clock. “In other words, if the professor’s subsequent termination is merely “a delayed, but inevitable, consequence” of the earlier discriminatory tenure decision, the discrimination claim accrues “at the time the tenure decision was made and communicated to” the plaintiff, not at the time of his later termination.”

Not neutral, actionable on their own. Here, however, Justice Jackson explained, the adverse actions identified “are different because they exhibit no such neutrality. The clubs’ policy of excluding Black dancers, if proven true, is discriminatory—but so, too, is each decision to bar a dancer from the premises because of her race.” The dancer’s allegations that, due to her race, she was barred from entering one club in November 2017 and the other in August 2021, “are claims of unlawful discrimination that are actionable on their own terms,” Jackson wrote. The fact that she “allegedly suffered similar acts of race discrimination in the past has no bearing on whether those two claims can proceed.”

What about Morgan? “As this Court has made abundantly clear,” Jackson continued, citing National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), ““[t]he existence of past acts and the employee’s prior knowledge of their occurrence... does not bar employees from filing [claims] about related discrete acts so long as the acts are independently discriminatory.” Instead, “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act.”

Justice Jackson explained:

“That last point bears repeating plainly, in light of the Fifth Circuit’s obvious confusion: If the discrete act that is the subject of the plaintiff ’s discrimination complaint is itself discriminatory, and if it allegedly occurred within the statute of limitations period, then that discrimination claim is timely—full stop.”

“To be sure,” Jackson added, again quoting from Morgan but with emphasis added, “discrete acts that fall within the statutory time period do not make timely acts that fall outside the time period.” “But it does not follow that acts falling outside of the time periods can make untimely those that fall squarely within it.”

Not a continuing violation situation. Jackson also clarified that the continuing-violations doctrine does not “play any role in the proper analysis” because hostile work environment claims are different from those involving discrete acts, like this one.

“The Fifth Circuit’s central misstep, then, was to conclude that past acts of race discrimination that are materially identical to subsequent discriminatory acts prevent the later acts from being actionable.”

The docket is No. 23-7490.

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