People's Law Guide
Attorney Peter Mavrick
If an employee claims employment discrimination under Title VII, how long can it take before the employer or former employer knows it needs to defend itself? This question is particularly important when an employer is auditing its potential liabilities. Under the current EEOC regulations, it could easily be more than a year, or possibly years, before the employer even discovers a charge of discrimination has been filed.
Under the applicable EEOC regulation, 29 CFR § 1601.12(b), "a charge is sufficient when the … [EEOC] receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." It is unclear whether the EEOC will prepare the written charge for the employee or if the employee must tender the written charge. What is clear, however, is that employer will not be notified of the charge and have to respond to it until after it is "verified" by the employee, i.e., sworn to by the employee.
The problem is that there is no bright line deadline for the employee or former employee to verify the charge, and hence no clear deadline when the employer or former employer will become aware of the charge of discrimination.
While the Supreme Court in Edelman v. Lynchburg College, 535 U.S. 106 (2002), upheld this EEOC regulation as within the EEOC's authority, the Supreme Court's opinion left open the possibility that the employer may retain a defense that it was prejudiced by the EEOC's rather open-ended procedure of holding the charge of discrimination for the employee until it is verified. The EEOC's procedure allows a sort of "lay away" plan for the employee to, some day in the future, verify the charge. In Edelman, the employer argued that it would be prejudiced by the EEOC's procedure because "there would be no deadline for verifying the charge." The EEOC maintained that its standard practice is to "caution" complainants that if they fail to "follow up" on their initial unverified charge, the EEOC will not proceed further with the complaint. Unfortunately, that begs the question: How long can the employee wait to "follow-up"? While that delay occurs, documentary evidence might be destroyed, witnesses might be difficult or impossible to locate, and if the delay is long enough witness recollections could become stale. The employer's defense could easily be impeded.
In a recent case, Mr. Mavrick represented a corporation defending a Title VII claim. One of the defenses Mr. Mavrick asserted was that the EEOC charge was too late and caused irreparable prejudice to the employer. Mr. Mavrick also argued that there can be no valid Title VII claim under such circumstances because it would amount to an end run around the statute of limitations and the purposes served by the statute of limitations.
In view of the current state of the law, employers should clearly document employment problems and retain such records well into the future. Keeping track of witnesses, however, will often be impractical and difficult. Litigation counsel for the employer should consider asserting a defense of prejudice if the employer has been harmed by the delay in presentment of the charge of discrimination.Attorney Peter Mavrick practices in business and employment litigation in Fort Lauderdale, Florida. This article is not intended to be a substitute for specifically tailored legal advice. Mr. Mavrick may be reached at (telephone) 954-564-2246; (office address) 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; (email) firstname.lastname@example.org.