Before an employment discrimination lawsuit gets filed in an actual court (federal and most state courts), it is required to go through an administrative process with local state and/or federal agencies (depending on your state). Often times, people are not aware of this legally required step or how to properly complete the administrative process, and this can get them in trouble down the line.
To bring a lawsuit for any claim of discrimination, whether such claim is based on race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, and/or disability, the claim must first have been identified and investigated by the state or local agency that handles employment discrimination. The most widely known of these agencies is the Equal Employment Opportunity Commission (“EEOC”), which handles claims of discrimination under laws such as Title VII of the Civil Rights Act of 1964; Americans with Disabilities Act (“ADA”), and Age Discrimination in Employment Act of 1967 (“ADEA”).
Cases are brought before the EEOC by filing a Charge of Discrimination. The Charge of Discrimination form allows the employee to mark off the boxes to identify the basis of their claims, like the boxes shown below:
Little do most employees know, that failing to check off one of these boxes could be detrimental to your case moving forward. (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; Read This Before Filing An EEOC Charge). When filing a charge of discrimination alone, you will speak with an EEOC representative about filing the charge, however, these EEOC reps are not attorneys and do not necessarily help you properly fill out the charging form. Having a qualified and experienced attorney will be the key to getting through this process. Think about it this way, you could rent a boat, scuba gear, and a cage to swim in shark infested waters by yourself and you may end up okay.
I went through the EEOC alone and didn’t check the right boxes, am I out of luck?
Best Employment Discrimination Attorney Answer: It depends. First and foremost, if there is time left to bring your claim through the administrative process, an employee’s rights lawyer can help you amend your charge of discrimination. Now, if the time to amend has expired (it is a short clock, which makes getting it right the first time so very important), then it gets a little trickier. What courts will look at is what information was provided during the administrative process to see if the claim may have grown out of the original charge, i.e., if it was pretty clear from the employee’s verbal or written statements to the investigator that a claim was meant to be brought, then it may be enough to actually bring the claim down the line.
Can you give me an example of a this EEOC charge issue?
Top Race And Gender Discrimination Lawyer Answer: Absolutely. Let’s look at Carter Hickman, in Hickman v. Florida Department of Corrections, , No. 21-12433, 2022 WL 3372003, at *1 (11th Cir. Aug. 16, 2022), as an example. In 2016, Hickman, who is Black, applied and interviewed for an administrator position with the Florida Department of Corrections’ security threat group unit. For more than twenty years prior to applying for this position, Hickman was employed as an analyst in the Department’s security threat group unit. Hickman’s interview occurred around Halloween time, which is important for the purposes of this blog.
Following Hickman’s interview, Hickman chose not to participate in a Halloween door-decorating contest within the office, as he felt it conflicted with his religious beliefs. When Brooke Powell, Security Threat Group Unit Chief, learned that Hickman would not be participating, Powell stated that Hickman’s failure to participate “showed that he lacked leadership skills” and rendered him a poor candidate for the administer position. Id. at *1. Ultimately, Hickman was not chosen for the administer position.
Hickman filed a Charge of Discrimination with the EEOC noting that his allegations of discrimination were based on age and race. However, Hickman did not check the box for religious discrimination. This is an obvious point where having the help of an experience employment law attorney would have prevented a lot of problems. Still, in spite of not checking the appropriate box, during the investigative process Hickman had verbally detailed his intention to bring a religious discrimination charge to a state investigator – who did not advise Hickman to check the religious discrimination box.
When Hickman finished the administrative process, he filed a claim for religious discrimination before the United States District Court for the Northern District of Florida. In response, the Florida Department of Corrections asked the Court to rule in the Department’s favor on Hickman’s claim for religious discrimination for failure to exhaust the administrative process required under Title VII. The Department’s argument was that Hickman had not checked the box for religious discrimination on the EEOC charging form.
Ultimately, the District Court determined that Hickman, now represented by counsel, could bring his religious discrimination claim. This decision was also upheld by the Eleventh Circuit of the United States Court of Appeals. The Appellate Court stated that the “exhaustion issue required the district court to consider whether, under the facts, the religion claim ‘grew out of’ Hickman’s original charge.” Id. at *3 (citing Gregory v. Georgia Dep’t of Hum. Res., 355 F.3d 1268, 1476 (11th Cir. 2004). Therefore, based on Hickman’s communications with the investigator, the District Court concluded that the religious discrimination claim had grown out of Hickman’s original charge.
All this being said, if you failed to include a claim of discrimination during the administrative process, all hope may not be lost. (See How Do I file An Employment Discrimination Charge With The EEOC?; Do I Need A Lawyer To Help Me File An EEOC Charge?) The best way to prevent ever getting to this point is to get legal representation during the administrative process.
What is the best way to bring a case to the EEOC or a State agency?
Workplace Rights Law Firm Answer: Do not wait to get advice from an attorney. Getting the right legal help from the start can make a world of difference for your case. If you believe you have an employment discrimination case, call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). The best option is to contact a lawyer early in the process. Call our lawyers in Ohio, Michigan, and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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