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Don’t Go At It Alone – If you file a Charge of discrimination with the EEOC, it helps to have a lawyer

Don't Go At It Alone – If you file a Charge of discrimination with the EEOC, it helps to have a lawyer

By Brian W. Tilker, Esq.
November 23, 2010

Joe Worker filed a Charge of discrimination against his employer with the Equal Employment Opportunity Commission (EEOC) — but Joe's claim was dismissed because he failed to check all the correct boxes on his EEOC form.

It helps to have an expert by your side when you file an EEOC Charge.  Even if you think that you have filled your EEOC Charge with enough facts to exhaust any administrative remedies, the omission of a fact or the box you leave unchecked could have disastrous consequences.

Joe is a disabled African American.  About two years ago, he filed his Charge of discrimination with the EEOC prior to filing an action in Federal court.  Joe checked two boxes on his EEOC form indicating that he was discriminated against on the basis of "race" and "disability."

"I was denied promotion to the position of Manager," Joe alleged in his EEOC Charge.  "I have been employed since August 15, 1998. To my knowledge, my work performance is satisfactory. I was not given any reason for my non-selection. I believe I was discriminated against because of my race and because I was regarded as being disabled, in violation of Title VII and the Americans with Disabilities Act."

But Joe left a few things out of his EEOC Charge.  Joe did not check the box labeled "retaliation."  Also, Joe's EEOC Charge made no reference to the three separate visits he made to his Human Resources department to complain about what he deemed retaliation as a result of the employer's refusal to promote Joe.

As a result of Joe’s mistakes, Joe Worker's claim did not convince the court that he had informed the employer that he was proceeding with his EEOC claim on a theory of retaliation.  As a result, Joe was precluded from pursuing a retaliation claim for failure to promote.

Under Federal law, a worker who files an EEOC Charge must either check the appropriate box for his or her claim or, at a minimum, advance allegations that permit a court to determine that the unchecked claim still follows from the allegations set forth in the EEOC Charge.  Failure to do so is a failure to exhaust your administrative remedies and, accordingly, your action may be dismissed.

At a minimum, make sure that the right word to describe your case, whether it be "retaliation," "national origin," "race," "sex," or another word appears in the EEOC Charge. Even if you check all the boxes that are printed on the EEOC form, it's still possible to leave off an important claim. For example, claims under the Equal Pay Act and Pregnancy Act are not present on the form and must be filled out separately under the "other" box of the EEOC Charge. Failure to do so could also result in the preclusion of one of your claims.

It helps to have an expert to advise you as you fill out your EEOC Charge. When meeting with an EEOC interviewer or discussing the issues with your attorney, do not presume that any information is irrelevant if it pertains to your claims

If you feel that you may have erred in filling out your EEOC Charge, consider contacting the EEOC or legal counsel as you may be permitted to amend your Charge immediately.

Don’t be a Joe. Filing an EEOC Charge independently can have disastrous consequences!

DISCLAIMER: This article is designed to provide general information.  Although this article has been prepared by professionals, it should not be used as a substitute for professional services.  If legal or other professional advice is required, the services of a professional should be sought.

Brian W. Tilker, an Associate at Pasternack Tilker Ziegler Walsh Stanton Romano, LLP, has a wide-ranging litigation practice including, but not limited to, employment discrimination, wage and hour disputes, consumer fraud and pharmaceutical actions.  He was an Articles and Notes editor of the St. John's Law Review and was a past recipient of the New York State Bar Association Legal Ethics Award.  As an employment litigator, he is a member of the Labor and Employment Section of the American Bar Association and a member of the National Employment Law Association.  Send your questions to: BTilker@workerslaw.com or call at (212) 341-7927.

November 23, 2010

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