The opinion of the court was delivered by: O'hern, J.
On certification to the Superior Court, Appellate Division.
This is an employment-practices claim under New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The plaintiff, a forty-nine-year-old woman, seeks redress for sexual harassment and for age and sex discrimination in the workplace. She first brought an action before the Division of Civil Rights (DCR) against Wal-Mart Stores (Wal-Mart). Through no fault of her own, the action languished there. Just before the statute of limitations was to expire, she filed this complaint in the Superior Court against Wal-Mart and her predecessor employer, K-Mart Stores (K-Mart). She then withdrew her administrative action. The Appellate Division dismissed her LAD complaint on the basis that she had not withdrawn her administrative action prior to filing the Superior Court action. Because the two-year statute of limitations has passed, the dismissal deprives her of any remedy for the vindication of her rights. N.J.S.A. 10:5-27 states that "[t]he [administrative] procedure herein provided shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned." The principal issue in this appeal is whether that exclusivity provision is a jurisdictional bar to the filing of the protective complaint in the Law Division or whether the Law Division has jurisdiction over a LAD claim when its further prosecution requires dismissal of the administrative action.
The secondary question is whether the claim against K-Mart is barred by the statute of limitations because it was not brought within two years of the last date of plaintiff's employment with K-Mart. That question requires consideration of the problem of successor liability when both predecessor and successor employers are alleged to have contributed to the creation of a hostile work environment. Resolution of that issue hinges in part on the continuing tort doctrine and whether the discriminatory conduct began before the succession and continued until the worker's termination. Because the record does not establish adequately the relationship between the successor enterprises, we remand that issue for consideration after further development of the record.
In August 1990, K-Mart hired plaintiff Nancy Wilson as a sales representative in one of its subsidiaries, a Pace Membership Warehouse (Pace). Pace is a form of a "big-box" store where merchandise is sold in bulk. The setting is like that of a warehouse -- rough and tumble. In May 1992, plaintiff was transferred to a different Pace store in Freehold and promoted to warehouse marketing manager, a salaried position. During her employment at the Freehold location, Rocco Gallo supervised plaintiff. On January 10, 1994, K-Mart sold the assets of the Freehold store to Wal-Mart. Gallo and plaintiff continued to work at the Freehold store, which became known as Sam's Club.
Because this case arises on a motion for dismissal, we must accept the facts as alleged by plaintiff. According to Wilson, her new position in Freehold was the "best job she ever had" in terms of compensation and potential advancement. Because she cherished this job, she endured Gallo's crude and indecent remarks, which began after her 1992 transfer to Freehold and while K-Mart ran the warehouse store. On March 1, 1994, some months after Wal-Mart took over the store, Gallo approached Wilson and asked her if she was wearing a brassiere. She said that she had not worn one in years. Gallo told Wilson either to begin wearing a brassiere or face termination. Wilson refused to wear a brassiere. The following day Gallo told Wilson to disregard the previous day's conversation. On March 4, 1994, Wal-Mart terminated Wilson. Wal-Mart replaced plaintiff with a male who was eleven years younger than plaintiff, but had a four-year marketing degree and ten years of marketing experience.
According to Wal-Mart, Wilson was not "laid off"; rather, her departure was based on a restructuring decision made after the January 1994 merger. Wal-Mart contends that the employment decision was based on valid business considerations other than a dress code for women and, further, that Wilson never expressed any complaints to Wal-Mart concerning harassment, noting that Wal-Mart had not maintained her personnel file prior to January 1994.
Within three months of her March 1994 termination, Wilson filed a pro se complaint with the DCR alleging that Wal-Mart discriminated against her on the basis of her age and sex. She did not name K-Mart as a party. Plaintiff hired an attorney, who filed an appearance with the DCR in August 1994. He and his client were unable to attend an initial fact-finding conference that was eventually postponed.
Plaintiff's attorney contacted the DCR investigator assigned to this case to find out when a new fact-finding conference would be scheduled. The attorney left a voice mail message requesting that the investigator return his call. Again, on October 19, October 26 and November 13, 1995, the attorney telephoned the investigator and left a message, but no action was taken. On November 13, 1995, the attorney also sent a letter to the investigator in an effort to determine the reason for the delay in scheduling a fact-finding conference. In that letter, the attorney mentioned his concern that Wilson could lose her "other rights" because of the statute of limitations running on her wrongful discharge claim. When the attorney finally reached the investigator on November 13, 1995, the investigator was unable even to estimate when the conference would be scheduled because of the "complete backlog" of work in the DCR.
On March 4, 1996, exactly two years after being terminated, plaintiff filed a civil action under LAD and named Wal-Mart, K-Mart, and Rocco Gallo as defendants. Plaintiff withdrew her complaint from the DCR on May 13, 1996. At that time, the DCR had not held a hearing or rendered any decision regarding the matter. K-Mart and Wal-Mart filed motions for summary judgment based on the LAD's exclusivity provision, N.J.S.A. 10:5-27. K-Mart also asserted that plaintiff's claim was barred by the two-year statute of limitations and because K-Mart had not been plaintiff's employer when she was terminated by Wal-Mart. After the trial court denied K-Mart's and Wal-Mart's motions for summary judgment, the Appellate Division reversed and remanded the matter for entry of judgment in favor of defendants. Gallo was not a party to this appeal. The Appellate Division concluded that plaintiff's complaint should be dismissed because she had failed to withdraw her DCR complaint before filing her complaint in the Superior Court, and further, that plaintiff's claim against K-Mart was time-barred because it was not filed within two years of employment with K-Mart.
New Jersey has a clear public policy to abolish discrimination in the workplace. Fuchilla v. Layman, 109 N.J. 319, 334, cert. denied sub nom. University of Medicine and Dentistry of New Jersey v. Fuchilla, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988). LAD's primary goal is to "eradicat[e] the cancer of discrimination." Ibid. (quoting Jackson v. Concord Co., 54 N.J. 113, 124 (1969)). Because discrimination in the workplace does not affect only the aggrieved party, the "public interest in a discrimination-free workplace infuses the inquiry." Id. at 335 (citing David v. Vesta Co., 45 N.J. 301, 327 (1965)).
When LAD was enacted in 1945, it explicitly provided only an administrative remedy. L. 1945, c. 169, § 26; see also Shaner v. Horizon Bancorp., 116 N.J. 433, 436 (1989). Although courts had found an implied judicial remedy, the express right to pursue a judicial remedy under the LAD did not exist until 1979. L. 1979, c. 404, § 12; see also Shaner, supra, 116 N.J. at 440 (discussing N.J.S.A. 10:5-13, which states in part that "[p]rosecution of such suit in Superior Court under this act shall bar the filing of a complaint with the division or any municipal office during the pendency of any such suit.").
The Legislature expressly confirmed the alternative enforcement mechanism to assist the DCR in reducing the DCR's "costs and backlog of cases." Shaner, supra, 116 N.J. at 442 (citing Governor Byrne's Statement on Signing S-3101 (L. 1979, c. 404, § 1)). Although plaintiffs are afforded a choice of forums, judicial relief under the LAD "is wholly comparable to and is at least as broad and far-reaching as that which is available in administrative actions under the LAD." Id. at 446. *fn1
In choosing the DCR as a forum, a complainant is "availing himself [or herself] of a means of redress normally swifter and less expensive than formal litigation." Sprague v. Glassboro State College, 161 N.J. Super. 218, 226 (App. Div. 1978). When that means of redress fails to achieve those goals, an injured party is entirely free to proceed in Superior Court. Once a plaintiff elects the administrative remedy, however, that proceeding "shall, while pending, be exclusive . . . ." N.J.S.A. 10:5-27. Although these remedies are "complementary" but "mutually exclusive," a pending complaint before the DCR may be withdrawn at any time provided that the DCR has not made a final determination. See Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 652, 656 (1996); Aldrich v. Manpower Temp. Servs., 277 N.J. Super. 500, 504-05 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). Election of remedies under N.J.S.A. 10:5-27 of the LAD, however, is not the same as claim preclusion. Aldrich, supra, 277 N.J. Super. at 504.
Unlike the plaintiff in Aldrich, id. at 506, Nancy Wilson failed to withdraw her DCR complaint before filing the Superior Court complaint. Defendant asserts that because plaintiff's action was pending before the DCR and she failed to withdraw that complaint, plaintiff should not be permitted to pursue her LAD action.
We disagree that the exclusivity provision was intended to have that effect. It would be a paradox if a legislative scheme intended to increase the choice of remedies for victims of discrimination had the unintended consequence of leaving a LAD complainant remediless. Defendants acknowledge that if Nancy Wilson had withdrawn her DCR complaint on March 3, 1994, she would have been able to proceed in the Superior Court. Conversely, defendants argue that if she had withdrawn her DCR complaint two days later, her complaint would have to be dismissed. We very much doubt that is the meaning of either the exclusivity or election-of-forum provisions. N.J.S.A. 10:5-27 is not a statute of limitations that by its nature must provide arbitrary results.
N.J.S.A. 10:5-27 basically seeks to prevent parties from having "a second bite at the apple" by pursuing the alternative route to relief. Ferrara v. Tappan Co., 722 F. Supp. 1204, 1205 (D.N.J. 1989). It seeks to prevent duplication of efforts and forum shopping. Although plaintiff failed to withdraw her DCR complaint before filing in Superior Court, her complaint is not barred by N.J.S.A. 10:5-27. The purposes of the provision were not thwarted. The DCR had done nothing other than docket the case; it was not actively investigating the complaint or expending resources. More importantly, as in Aldrich, supra, no administrative ruling had been rendered. Similarly, defendants have not expended additional resources or conducted discovery and, more importantly, would not be unfairly disadvantaged by being required to litigate this matter in Superior Court. Had plaintiff not promptly withdrawn the DCR action, the familiar common-law defense of "other action pending" would have quickly confined the dispute to one forum. Gilles v. Ware, 615 A.2d 533 (D.C. 1992). This interpretation is faithful to the words of the Act. It construes the LAD "fairly and justly with due regard to the interests of all the parties." N.J.S.A. 10:5-27. To hold otherwise would deprive Nancy Wilson of a single bite at the apple.
Continuing Tort - Successor Business Liability
The more subtle and demanding question is when the statute of limitations begins to run on a hostile-work-environment sexual harassment claim in the context of successor-business enterprises, each of which has contributed to the creation of a hostile environment. *fn2 K-Mart contends that any claim for sexual harassment against it must have been brought within two years of the change in ownership that occurred on January 10, 1994.
When an individual is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases. See, e.g., Cyrus v. Nero, 546 N.E.2d 328, 331 (Ind. Ct. App. 1989) (discussing continuing tort doctrine). Although some jurisdictions have asserted that the continuing tort doctrine should be applied broadly as a rule of equitable tolling, no consensus exists regarding whether the rule is one of accrual or of tolling. James R. MacAyeal, The Discovery Rule and the Continuing Violation Doctrine as Exceptions to the Statute of Limitations for Civil Environmental Penalty Claims, 15 Va. Envtl. L.J. 589, 623-24 (1996).
In Smith v. Tandy Corp., the court refused to expand the doctrine to harassment claims because the plaintiff "was fully aware of the tortious acts . . . , and she certainly could have filed the suit within the two-year limitations period." 738 F. Supp. 521, 523 (S.D. Ga. 1990). On the other hand, the Supreme Court of Louisiana recognizes that "it is the cumulation of acts and conduct, and the resulting cumulation of damages, that transforms the individual incidents of harassment into an actionable tort." Bustamento v. Tucker, 607 So.2d 532, 540 (La. 1992). The court noted that hostile environment claims are often based on continuing violations because "[i]n a hostile environment, an individual feels constantly threatened even in the absence of constant harassment." . . . A logical corollary is that once a pattern of ...