Chapter 3 - § 3.3 • REQUIREMENTS OF FILING A CHARGE OF DISCRIMINATION

• Jurisdiction: Colorado

§ 3.3 • REQUIREMENTS OF FILING A CHARGE OF DISCRIMINATION

An employee who believes that he or she has been discriminated against because of race, sex, color, religion, or national origin must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), www.eeoc.gov. An employee may also file the charge with the state agency having jurisdiction over the type of discrimination alleged. In Colorado, the state agency with jurisdiction over the Colorado Anti-Discrimination Act is the Colorado Civil Rights Division (CCRD), www.colorado.gov/pacific/dora/civil-rights.

A charge of discrimination in a state such as Colorado, where there are state laws prohibiting unlawful employment practices and a state agency to enforce them, must be filed with the EEOC within 300 days of the last discriminatory act. 42 U.S.C. § 2000e-5(e)(1); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). A federal employee must make timely contact with an EEO counselor within 45 days of the "matter alleged to be discriminatory" as required by 29 C.F.R. § 1614.105(a)(1). Green v. Brennan, 136 S. Ct. 1769, 1775 (2016). A charge of discrimination must be filed with the CCRD within 180 days of the last discriminatory act. C.R.S. § 24-34-403. However, a filing with either the EEOC or CCRD is accepted as filed with both agencies. Id.; 42 U.S.C. § 2000e-5(e)(1).

§ 3.3.1—The Filing Period Requirements

An employee who alleges an unlawful employment practice must file his or her charge within 300 days after the unlawful employment practice happened. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 101. To determine what is an unlawful employment practice and when it has occurred, the Supreme Court has divided the acts or events into two categories: discrete discriminatory acts and incidents involving hostile work environments.

Practice Pointer
Employers should always plead the failure to exhaust administrative requirements as an affirmative defense. The question of whether there has been sufficient notice of the type of claim raised can be crucial. See Jones v. Needham, 856 F.3d 1284, 1191-92 (10th Cir. 2017) (finding that charge did provide sufficient notice of quid pro quo sexual harassment claim based on analysis of sexual harassment claims).

§ 3.3.2—Discrete Acts

A discrete retaliatory or discriminatory act "occurred" on the day it "happened." Id. Examples of discrete acts are termination, failure to promote, denial of transfer, or refusal to hire. Each incident of discrimination and each retaliatory adverse employment action constitutes a separate, actionable "unlawful employment practice" for which administrative remedies must be exhausted. Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (citing Morgan, 536 U.S. at 110-113); Holmes v. Utah, 483...