Eighth Circuit Rejects Post-Charge Retaliation Exception

by Ruth Horvatich

Horvatich, Ruth
(402) 341-3070

It is well known that the general rule is that before an employee may sue his or her employer for discrimination, they must first file an administrative charge. Then after the administrative agency completes the investigation and either finds reasonable cause or dismisses the charge, a lawsuit may be filed. But, what happens if a current employee files a charge with the EEOC alleging race and gender discrimination and is terminated (for legitimate reasons of course!) after he or she has filed his or her charge? May the employee file another charge with the EEOC alleging retaliation for filing his or her first charge? Yes. May the employee immediately file a lawsuit in federal court alleging retaliation? No!

In Richter v. Advance Auto Parts, Inc., the Eighth Circuit recently rejected a post-charge retaliation exception to the administrative remedies requirements under Title VII. In that case, an employee had filed a charge with the Equal Employment Opportunity Commission (“EEOC”), alleging that she was discriminated based on her race and her sex. On the EEOC forms, the employee checked the boxes for “race” and “sex,” but did not check the “retaliation” box. After the employee filed this charge, she was terminated. This charge was eventually dismissed by the EEOC and the employee was notified that she had 90 days to file a lawsuit against the employer.

The employee did file suit in district court against the employer, however, she did not allege discrimination based on race or sex, rather she alleged that the employer discriminated against her in retaliation for filing her charge with the EEOC. The employee asserted that days after she informed her employer about the charge she was terminated in retaliation for filing a charge with the EEOC.

A split Eighth Circuit upheld the lower court’s dismissal of the employee’s Title VII retaliation claim because she failed to exhaust her administrative remedies relating to her retaliation claim. Title VII requires that a complainant must file a charge with the EEOC within 180 days “after the alleged unlawful employment practice occurred,” and give notice to the employer of the circumstances of “the alleged unlawful employment practice.” The court reasoned that these passages establish that the complainant must file a charge with respect to each alleged unlawful employment practice. The employee’s EEOC charge only alleged race and sex discrimination that occurred on one date and did not make any allegations relating to retaliation that occurred on a later date, which was the basis of her complaint in federal court. The court found that each discrete act was a different unlawful employment practice that required a separate charge.

The Eighth Circuit directly rejected the employee’s argument that retaliation claims that arise from a previous charge filed with the EEOC are excepted from the statutory exhaustion requirement because they are “like or reasonably related” to the previous claims. The majority also rejected the dissenting judge’s policy considerations to support a rule that would except post-charge retaliation claims from the general exhaustion requirement, including the view that exhaustion of such claims was a “needless procedural barrier,” and concern that an employee who experienced alleged retaliation would be reluctant to file a separate charge with the EEOC.

What does this mean for you, the employer?  This is a good opportunity to brush up on limits for filing discrimination charges. As shown by the above case, federal claims must be filed with the EEOC or a state or municipal employment discrimination agency prior to a lawsuit. These federal claims include Title VII claims, Age Discrimination and Employment Act (ADEA) claims, and Americans with Disabilities Act (ADA) claims. The complainant will have 300 days from the alleged discrimination to file claims with the EEOC. If their charge is dismissed by the EEOC, the complainant will then have 90 days to file a lawsuit in court.

However, it is important to note that this may not be the case under state law. For instance, in Nebraska because of a rare and unusual statute, state law claims may be filed immediately in state court or first filed with a state or municipal agency. Also, in South Dakota, a state law charge must be filed within 180 days, rather than 300 days, from the last date of discrimination. Please contact us for information regarding the specific law in your state.

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