Generally, a statute of limitations is a time limit for filing charges against another party. Under Title VII of the Civil Rights Act of 1964, an employee or applicant has 180 calendar days from the day the discrimination took place to file a charge with the Equal Employment Opportunity Commission (“EEOC”). (Best Law Read: It’s Bad To File With The EEOC Without A Lawyer; Read This Before Filing An EEOC Charge; Don’t File With The EEOC On Your Own; The EEOC Will Not Help You Properly Fill Out The Charging Form). However, if a state or local agency enforces a law that prohibits employment discrimination on the same basis, the deadline is extended to 300 calendar days. This is a very firm deadline that should not be missed. (Note that some states have longer statutes of limitations, including Ohio, which gives an employee up to two years to file a charge of employment discrimination).
As a reminder, Title VII, along with the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act of 1967 (“ADEA”), are the federal laws that makes it unlawful for an employer to discriminate in any aspect of employment based on an employee’s or applicant’s race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, age, or disability. Any discrimination claim based on one of these protected classes must be administratively filed with the EEOC before an employee can file a lawsuit in court. Failing to properly do so will result in the summary dismissal of the claim.
Once the EEOC issues an employee a right-to-sue letter, the employee will have only 90 days to file a lawsuit in federal court. Once again, this is a very strictly enforced deadline.
In Heath v. City of Philadelphia, No. 21-2309, 2022 WL 4298123, at *1 (3d Cir. Sept. 19, 2022), the United States Court of Appeals for the Third Circuit addressed a blown statute of limitations by Evelyn Heath, now-retired Chief Inspector for the Philadelphia Police Department. Health explained her delay on her earliest claims of discrimination: “there was just a lot going on in my life and emotionally I just couldn’t get my act together enough to pursue [the claims] until I was ready to do it again.” Id. at *2. Yeah, that one was never going to work. Importantly, while employment discrimination and wrongful termination can be very emotion and hard to deal with, your best course of action is to meet with an experienced employee’s rights lawyer as soon as possible and let the attorney take over the process for you.
What is the effective date for a constructive discharge claim for the purposes of calculating the statute of limitations deadline?
Best Wrongful Termination Attorney Answer: A “constructive discharge” occurs when an employee’s quitting, resignation or retirement is found be involuntary as a result of the employer creating a hostile or intolerable work environment and/or pressuring or coercing which forced the employee to end the employment. (Best Law Read: What Does “Constructive Discharge” Mean?; How Many Insults Equals Constructive Discharge?). If the evidence shows that the employer essentially forced the employee to quit, resign, or retire, the constructive discharge establishes the averse action necessary to prove a wrongful termination claim. (Best Law Read: What Constitutes An Adverse Employment Action Under Title VII?; What Is An Adverse Employment Action?). Because proving constructive discharge claims are significantly harder to prove when an employee gives two weeks’ notice (and effectively admits that the work environment is not so hostile as to immediately force an employee to leave), our employment discrimination lawyers advise against giving such notice to employers. (Best Law Read: Do I Have To Give My Boss Two Weeks’ Notice?).
In Heath, the United States Court of Appeals for the Third Circuit addressed identified that the effective date for a constructive discharge claim for the purposes of calculating the statute of limitations deadline was the date that the notice was given by the employee to the employer and not the employee’s last day of work:
Next, Heath claims that she was constructively discharged on March 20, 2015, the day she officially retired. But “a constructive-discharge claim accrues—and the limitations period begins to run—when the employee gives notice of h[er] resignation, not on the effective date of that resignation.” Green v. Brennan, 578 U.S. 547, 564 (2016). Thus, Heath’s constructive discharge claim accrued, at the very latest, on March 21, 2011, when she gave irrevocable notice of her retirement, not four years later, when her retirement became effective. This claim is therefore time-barred.
Id. at *2. (As an aside, who gives notice that they are going to retire in four years because of ongoing harassment?).
Therefore, when calculating the 180 or 300 day statute of limitations to file the charge regarding a constructive with the EEOC, it is important to start counting from the date that the notice was given, not the last day of work.
What is the continuing violations doctrine?
Top Race Discrimination Attorney Lawyer Answer: The continuing violation doctrine is an equitable legal principal that provides that when an employee files an EEOC charge with at least one act constituting the hostile work environment still timely within the statute of limitation, then the whole time period of the hostile work environment can be considered for purposes of deciding liability. Stated more simply, the continuing violation doctrine allows liability for unlawful employer conduct beyond or outside the statute of limitation if it is sufficiently connected to unlawful conduct occurring within the limitations period. To that end, to allege a continuing violation, an employee must show that all acts which constitute created the hostile work environment are part of the same unlawful employment practice and that at least one of those acts falls within the applicable limitations period. (Best Law Read: Have I Waited Too Long To Sue My Employer? Ohio Lawyer Best Answer!).
Importantly, the continuing violation doctrine only applies to hostile work environment claims and does not apply to discrete acts of discrimination, such as wrongful termination claims.
In Heath, the United States Court of Appeals for the Third Circuit applied the continuing violation doctrine to the facts of that case and held:
Nor can Heath’s claims be salvaged by the continuing violations doctrine. That doctrine allows a “court [to] grant relief for … earlier related acts that would otherwise be time barred” if the “defendant’s conduct is part of a continuing practice” of discrimination and “the last act evidencing the continuing practice falls within the limitations period,” Tearpock-Martini v. Borough of Shickshinny, 756 F.3d 232, 236 (3d Cir. 2014) (quoting Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991)), but does not apply to “isolated, sporadic, or discrete” acts—such as retaliation, wrongful discipline, or termination—and so generally applies only to hostile work environment claims, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 107, 114 (2002); see also O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006). But Heath identifies only “discrete” acts, such as disputes with her neighbors, disciplinary proceedings, and that the PPD made her return a City-issued police car. Morgan, 536 U.S. at 114; see Tearpock-Martini, 756 F.3d at 236. And in any event, Heath, having left the workplace permanently in January 2014, did not experience any work environment during the actionable time frame, let alone a hostile one. See Overly v. KeyBank Nat. Ass’n, 662 F.3d 856, 864 (7th Cir. 2011) (post-employment activity “cannot establish a hostile environment”).
Id. at *2. Thus, given that even the last employment acts going towards Heath’s hostile work environment claims occurred outside the statute of limitations, those acts could not revive older conduct.
What should I do if my racist boss fired me today?
Best Employment Lawyer Answer: The biggest takeaway from today’s blog should be to hurry up and call a lawyer to evaluate your claim. There is no good reason to wait. (Best Law Read: You Don’t Need All Evidence To Start A Discrimination Case). In fact, waiting only puts your potential claims at risk. So, if you were fired today because of your race, national origin, gender, age, religion or disability, then it would be best to 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). Our attorneys in Cleveland, Columbus, Detroit, Toledo Cincinnati, and Raleigh are standing by to help you. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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