A potential plaintiff who believes that he or she has been unlawfully discriminated against on the basis of race, color, religion, sex, and national origin should consider filing a lawsuit for violations of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., more commonly known as “Title VII.” Before the plaintiff may do so, he or she must fulfill two requirements: (1) file a charge, and (2) receive a right-to-sue letter. Together, these steps complete the required “exhaustion of administrative remedies” necessary before filing a lawsuit for discrimination under Title VII. Both steps can be done without a lawyer, but there are many traps for the unrepresented plaintiff.
The first step is to file a timely and adequate charge (EEOC Form 5) with the Equal Employment Opportunity Commission (“EEOC”).
1.The Timely Charge
It is important to file a “timely” charge. If the state in which the discrimination occurred has a local fair employment practice agency apart from the EEOC (these states are called “deferral states”), the future plaintiff has 300 days from the date of the last discriminatory act to file a charge or risk losing the right to sue. In states like Alabama, where there is no state-sponsored employment agency, the plaintiff has 180 days from the date of the last discriminatory act to file a charge. The reason for the difference is that state’s with their own fair employment systems generally require the plaintiff to file a charge with its agency, giving the state a chance to resolve the problem, before filing an EEOC charge.
There can be some complicated issues regarding when the last discriminatory act occurred for the purpose of determining whether a charge has been timely-filed. Because the 180 day filing requirement is a rigid one, cases may succeed or fail altogether based upon this determination.
One form of discrimination may be a “discrete act,” such as a demotion, pay cut, refusal to hire, etc. That was the discriminatory act, and the plaintiff has 180 days to file a charge after he or she learned of it.
Other claims, like those for a “hostile work environment,” have different rules. Because the nature of a hostile work environment claim involves repeated discriminatory acts, the unlawful and discriminatory employment practice cannot be said to have occurred on one identifiable day. Rather, the discriminatory practice occurs over a series of days, months, or years. In these cases, courts look at all of the discriminatory conduct to determine whether an unlawful employment practice occurred, considering even those acts that would otherwise be time-barred.
Unlike a discrete act, a single act in a hostile work environment claim may not be actionable, though all the acts considered as a whole may be. For that reason, hostile work environment claims are considered “continuing” discriminatory acts. To satisfy the 180 day filing requirement, the plaintiff need only file a charge with the EEOC within 180 days of any act that is considered part of the hostile work environment, regardless of whether the acts are still occurring or whether future discriminatory acts are expected to occur.
To illustrate, let’s use a couple of examples.
(1) Example of Timely Filing a Charge for a Discrete Discriminatory Act.
Bill Smith, an African-American, was fired by his employer on November 9, 2011, and Mr. Smith feels pretty sure his race is the reason for the termination. In Alabama, Bill has 180 days to file a charge with the EEOC or risk losing his claim forever. Simple and straightforward.
(2) Timely Filing a Charge for a Continuing Discriminatory Act
Sherry Smith, a white female, has been subjected to conduct she believes constitutes sexual harassment, on-and-off, for about two years. The individual responsible for the harassment is Frank, her supervisor. Early in Ms. Smith’s employment, Frank made lewd comments about her appearance, grabbed her, showed her pornographic images, and attempted to solicit sexual favors. After dealing with six months of this, Sherry made an in-house complaint, and Frank stopped for about a week. He then started back, again off-and-on, for the next year or so. Sherry complained again, and Frank stopped, for another week. Then, Frank attended the office Christmas Party, had too much to drink, and tried to get Sherry to kiss him under the mistletoe. That act, standing alone, would probably not support a claim for sexual harassment. Sherry has a viable claim if all of Frank’s acts are considered. Even if Sherry were to file a charge the day after Frank attempted to kiss her, not all of Frank’s harassing acts occurred within the mandatory 180 day period.
Ms. Smith has a conundrum that the law has solved. Since one of her claims would be for a hostile work environment, Sherry has 180 days from the attempted kiss to file a charge, and likely all of Frank’s conduct will be considered by the EEOC and the court. That last act, though it would not support a claim on its own, was the attempted kiss. Ms. Smith has 180 days from the date of that act to file a timely charge of discrimination.
2. The Adequate Charge.
Not only must a charge be “timely,” but it must also be “adequate.” Timely charges that are not adequate risk being considered not a charge at all. Thus, an inadequate charge could leave the plaintiff in the position of having not exhausted his or her administrative remedies. A charge should include a request that the EEOC take action for appropriate relief. Adequate charges will be written signed, and verified, should include the following:
The full name, address, and telephone number of the person making the charge, with some exceptions;
The full name and address of the person against whom the charge is made (also called the “respondent”), if known;
A clear and concise statement of the facts, including dates, which constitute the unlawful employment practice;
If known, the approximate number of employees of the respondent employer; and
A statement explaining any state or local agency proceedings for the discriminatory conduct.
That said, it may be sufficient for the employee to include a detailed, written statement identifying the relevant parties and describing the action or practices complained of. Charges that are not “adequate” may be amended, and such amendments may even “relate back” to the date the inadequate charge was filed. This will prevent a plaintiff from losing his or her claim by filing an amendment that is outside the 180 day filing mandate.
3.Naming the Respondent
The future plaintiff should name the proper respondents in the charge. Put simply, the respondents should be anyone or any entity that the plaintiff may possibly want to sue at the end of the administrative process. Failure to include someone as a respondent, could prevent the plaintiff from filing a lawsuit against that individual. And by the time the process has complete, the time for re-filing a charge will likely have expired, thus barring the plaintiff from ever suing the unnamed individual or entity.