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How long do I have to sue for employment discrimination and what happens if I miss the deadline?

As our employee’s rights attorneys have blogged about before, the deadlines for filing employment discrimination, harassment, or wrongful termination claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), and Age Discrimination in Employment Act of 1967 (“ADEA”) can be very confusing but are very strictly enforced. These federal statutes prohibit discrimination based on an employee’s race/color, gender, gender identity, sexual orientation, religion, national origin, age, or disability. In law, these deadlines are known as statutes of limitations, which lawyers frequently refer to as the SOL. It is appropriate that this acronym, SOL, is more commonly used by non-lawyers to mean “shit out of luck” because if an employee misses the statute of limitations, that employee will likely be “shit out of luck.”

Under Title VII, the ADA and the ADEA, workers are given up to 180 days to appropriately submit a complaint with the Equal Employment Opportunity Commission (“EEOC”). However, this duration may be extended to 300 days if the particular state where the claim should be filed has a local or state agency responsible for enforcing employment discrimination laws based on factors such as gender, race, age, national origin, and those other protected classes identified above. To illustrate, in the case of Ohio, which has anti-discrimination laws overseen by the Ohio Civil Rights Commission and allows state law claims to be filed up to two years, the deadline for filing an EEOC charge is 300 days. Conversely, in North Carolina, the deadline remains at 180 days for both federal and state claims. Meanwhile, in Kentucky, the deadline to file with the state is 180 days and to file with the EEOC is 300 days.

But those are not the only deadlines in play. If the EEOC issues an employee a right to sue letter (“RTS”), the employee must properly file the complaint or lawsuit in federal court within 90 days of receipt of the RTS. However, if the employee is pursuing state law employment discrimination or harassment claims in state court, this deadline might be wildly different – or it might be exactly the same.

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Can a statute of limitations be extended for a really good reason?

While there may be some situations that warrant an extension of the statute of limitations, which is legally referred to as equitable tolling, these circumstances are exceptionally rare. The standard for equitable tolling of a statute of limitations refers to a legal doctrine that allows for the suspension or extension of the prescribed time limit within which a legal claim must be filed. Statutes of limitations are established by laws to ensure that lawsuits are brought within a reasonable period after the alleged wrongdoing, balancing the need for timely resolution and the preservation of evidence with the interests of fairness and justice.

Equitable tolling comes into play when there are exceptional circumstances that prevent an individual from filing a claim within the specified time frame, despite the exercise of reasonable diligence. It is based on the principle that the strict application of a statute of limitations may lead to unjust outcomes in certain cases. Equitable tolling is not available to a litigant who misses a deadline because of a “garden variety claim of excusable neglect” or a “simple miscalculation.” Holland v. Florida, 560 U.S. 631, 651–52, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). To that end, courts will never likely accept the excuse that the U.S. Postal Service or any other carrier failed to timely deliver the complaint to the Court.

To meet the standard for equitable tolling, the tardy employee must prove the following criteria:

  1. Extraordinary Circumstances: Employees must demonstrate that there were circumstances beyond their control that made it impossible or unreasonable for them to file the claim within the statutory time limit. These circumstances may include fraud, disability, mental incapacity, deception, or some other form of misconduct that prevented the claimant from timely pursuing their rights.
  2. Diligence: Employees must also show that they exercised reasonable diligence in pursuing their claim. This means that despite facing obstacles or delays, the claimant made reasonable efforts to investigate and take legal action as soon as they became aware of their rights being violated.
  3. Lack of Prejudice: Equitable tolling may be granted only if the defendant employer would not be unduly prejudiced by allowing the claim to proceed outside the normal statute of limitations. The court considers whether the delay in filing the claim has caused significant harm to the employer’s ability to mount a defense or has resulted in the loss of relevant evidence.

The application of equitable tolling is subject to the discretion of the court, which considers the specific circumstances of each case. If the court determines that equitable tolling is warranted, it effectively stops the clock on the statute of limitations, allowing the claimant to file the lawsuit even if the original time limit has expired. However, because this decision is discretionary, if a judge determines that the employee failed to prove even one of these factors, the employee is SOL without much hope on appeal.

It’s also important to note that the standards for equitable tolling can vary to some extent depending on jurisdiction and the specific legal claim involved.

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Do you have an example of a case where equitable tolling was requested?

Let’s look at a recent example. In Robinson v. Dep’t of Homeland Sec. Off. of Inspector Gen., No. 22-5093, 2023 WL 4036253 (D.C. Cir. June 16, 2023), Adam Robinson asserted that he was wrongfully fired based on race and gender discrimination from the Department of Homeland Security. Robinson elected to represent himself pro se – which is never a good idea.

Robinson filed an affidavit with the court asserting that, he contacted the Office of the Clerk of the United States District Court for the District of Columbia to inquire about the handling of mail during the Covid-19 outbreak. Per Robinson’s account, the clerk informed him that “filing deadlines during this period were not being strictly enforced due to the pandemic and the clerk’s office [was] operating on a modified schedule where Court clerks were only on-site two days per week to process filings.” Additionally, Robinson attested that the clerk expressly told him that “it was more important to just file rather than to worry about meeting a strict deadline.”

Robinson mailed the complaint to the Court by standard mail on June 15, four days before the June 19, 2020 deadline, with the expectation that it would take only two days to get there. It took five days and was accepted by the Clerk on June 20, one day after the statute of limitations.

Robinson believed he deserved a one-day equitable tolling since the courthouse had restricted COVID hours, including being closed three days per week; the world being otherwise upside down because of COVID; the wrong advice allegedly being given by the Court clerk; the alleged delay in the mail delivery; and that a one day delay certainly did not prejudice his employer, the Department of Homeland Security. The district court disagreed and dismissed his case; and the United States Court of Appeals for the District of Columbia affirmed the dismissal, holding:

[None] of Robinson’s contentions “meet the high threshold for applying this rare remedy.” Jackson, 949 F.3d at 778. The district court standing order in effect at the time Robinson mailed his complaint contained a general observation that “operations of the Clerk’s Office are continuing but have been limited to support essential functions.” The order specifically informed pro se litigants, however, how they were to submit filings, to wit: “by sending the filing via email to the Court’s email address: [email protected]” or “by date-stamping and depositing papers in drop boxes located at the entrance to the Courthouse.”

Robinson instead chose to mail his complaint, by standard mail, four days before the statutory deadline. Neither he nor his eventual counsel explained why he did not use one of the two options the Standing Order expressly gave him. Robinson makes no assertion that COVID-19 kept him from delivering his filing in person to the courthouse drop box, that the court personnel’s guidance impaired his timely filing, that COVID-19 prevented his use of overnight delivery of his filing or that COVID-19 otherwise impeded him from timely filing electronically. The record instead shows that Robinson chose to mail his complaint by standard mail four days before the statutory filing deadline and assumed the risk his complaint would arrive late.

Robinson at *5-6.

The moral of the story to take from Robinson is that if there is any way that the plaintiff can avoid filing late, courts will expect the plaintiff to do so and likely cut no slack for that failure to take those available options.

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Do I still have time to sue my former employer for employment discrimination or harassment?

There are a lot of factors that go into evaluating whether you have a timely claim for race, gender, national origin, LGBTQIA+, age, disability, or religious discrimination; sexual harassment; or wrongful termination. Some of those factors are discussed in this blog while other factors are not – one blog cannot contain the entirety of legal knowledge. Instead of searching Google to understand your legal right, it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky 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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