Post Charge Title Vii Claims: a Proposal Allowing Courts to Take ‘charge' When Evaluating Whether to Proceed or to Require a Second Filing

JurisdictionUnited States,Federal
Publication year2010
CitationVol. 18 No. 3

Post Charge Title VII Claims: A Proposal Allowing Courts to Take ‘Charge' When Evaluating Whether to Proceed or to Require a Second Filing

Kelly Koenig Levi


In 2000, employees filed nearly 20,000 charges with the Equal Employment Opportunity Commission (EEOC) alleging they were subjected to employment discrimination in violation of Title VII of the Civil Rights Act of 1964.[1] This number, up from 1999,[2] demonstrates that despite employers' efforts to prevent discrimination in the workplace, employees continue to perceive discrimination based on sex, race, religion, and national origin, all which are protected classifications under Title VII.[3] Indeed, employees have not been significantly discouraged from engaging in the initial administrative procedure required to bring an employment discrimination suit in federal court—filing a charge with their nearest EEOC office.[4]

After receiving a Title VII discrimination charge, the EEOC must serve the charged party with notice of the date, place, and circumstances of the allegedly unlawful employment practice.[5] This requirement allows the employer to defend against the charges and commences the EEOC's investigation, which may be followed by conciliation and settlement attempts.[6] Regardless of the EEOC's findings, the complainant cannot proceed with court action before receiving a right to sue letter from the EEOC.[7] Thereafter, the charging party has approximately three months to file a complaint with the district court.[8]

The complaint should, of course, include the allegations described in the charge filed with the EEOC. After all, the EEOC issued a right to sue letter to the complainant authorizing a suit based on those allegations. What should occur, however, when the complaint includes claims of discrimination that the complainant did not raise in the EEOC charge? Because the district court only has subject matter jurisdiction when the complainant has filed an EEOC charge,[9] should the court proceed with the claims or should the court require the plaintiff to file a new EEOC charge to ensure that the court has subject matter jurisdiction over the claim? What if the complaint includes claims of discrimination that occurred before those alleged in the EEOC charge? Should the same rule apply to claims of discrimination that occurred after those alleged in the EEOC charge? Assume, for example, that the new charge of discrimination is one of retaliation for the employee's act of filing the EEOC charge. Should the same rule apply to a new charge based on the theory of sex discrimination, which occurred months after an initial claim of race discrimination? Should the same rule apply to a post charge allegation that includes a broad-based attack on different employment policies or practices?

Some courts answer yes to some or each of these questions, while other courts answer no to some or each of these questions.[10] This Article seeks to answer the questions above by providing a way for the courts to take charge when addressing these questions. In doing so, this Article offers one rule that applies to all types of Title VII claims included in the court complaint, but not in the original or amended EEOC charge. Part I discusses the intricacies of the EEOC administrative filing procedures and the reasons for such procedures. Part II discusses how federal courts have dealt with Title VII claims alleged in the complaint, but not in the EEOC charge. More specifically, this section first addresses the two general legal rules that federal courts follow when dealing with these claims. Thereafter, it evaluates how courts have applied these rules to various types of post charge claims and the resulting problems.

Part III proposes a single standard for courts to apply to all post charge Title VII discrimination claims to determine whether the claims should proceed or whether the plaintiff should be required to file a second charge with the agency. In doing so, this section discusses the application of the proposed framework to various post charge Title VII claims. Finally, Part IV offers ways in which the proposed rule ensures that the policies behind the EEOC filing process are satisfied. Further, it suggests additional steps for courts to consider when determining whether to entertain the post charge claim or to require the complainant to become reacquainted with the filing procedures.

I. Administrative Filing Procedures and Purposes

The administrative procedure for filing a discrimination charge with the EEOC is rather simple. An employee may file a charge in person, by mail or even by telephone.[11] The charge form, which is designed to be completed without counsel's assistance,[12] specifies the information required and even allows the complainant to mark boxes that are relevant to his or her allegations.[13] The law requires that the charge contain specific information including, but not limited to: (1) the full name, address and telephone number of the charging person; (2) the full name and address of the person against whom the charge is made, if known; and (3) a clear and concise statement of the facts, including pertinent dates that constitute the alleged unlawful employment practices.[14] Despite such requirements, the law also concludes that a charge is sufficient when the EEOC "receives . . . a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of."[15] Thereafter, a charging party may amend the charge to cure technical defects and omissions and to clarify or amplify allegations made within the initial charge.[16]

Because Title VII is a remedial statute, the administrative filing process is quite liberal.[17] An employee is not required to set forth with "literary exactitude" all of the facts and theories upon which the claim is based,[18] nor is it a blueprint for the litigation that follows.[19] To require heightened or exact pleading requirements would contradict Title VII because it may cause the very persons Title VII intended to protect to lose that protection. More specifically, employees, who may act without the assistance of counsel, are often ignorant of, or unable to thoroughly articulate, the discriminatory practices they experienced.[20]

The immediate purpose of the filing requirement is, however, clear and important. The filing requirement "initiate[s] the statutory scheme for remedying discrimination."[21] Once the EEOC receives a charge, it has ten days to serve the responding party with a copy, or at least notice, of the charge and will request that the respondent submit an answer in defense.[22] After receiving and reviewing the answer, "the EEOC will determine whether it wishes to investigate further."[23] If the EEOC proceeds further, it will investigate whether there is reasonable cause to conclude that the unlawful practices expressed in the charge are true.[24] The investigation—the focus of the EEOC's procedures—may continue for no longer than 120 days after the filing of the charge.[25]

If, through its investigation, the EEOC finds "reasonable cause" to believe that the charge is true, the case proceeds to the next phase of the administrative procedure—conciliation.[26] In light of Title VII's goal, which is to eliminate unlawful employment practices through conference, conciliation, and persuasion, the EEOC attempts to resolve all violations by "obtain[ing] [an] agreement that the respondent will eliminate the unlawful practices and will provide appropriate affirmative relief."[27] This agreement, which is meant to resolve disputes before the filing of a lawsuit, is binding and enforceable by the parties.[28] In theory, conciliation efforts are best achieved when a signed agreement prevents suit in district court. In reality, however, conciliation is the basis of the administrative procedures.[29] Conciliation often begins after a preliminary investigation, can proceed through a reasonable cause determination, and may continue even after the lawsuit commences.[30]

If informal methods of conference, conciliation, and persuasion efforts fail, or even if the EEOC finds no reasonable cause,[31] a charging party may request that the EEOC provide a right to sue letter.[32] Once the charging party receives notice from the EEOC of the right to sue, which is a prerequisite to court action, he or she has ninety days to file a complaint in court.[33] Despite Congress' attempt to resolve violations through conciliation and voluntary compliance, most discrimination allegations proceed to federal court. Here too, the process begins with a filing procedure—the filing of a complaint.

Like all other complaints filed in federal court, complaints alleging Title VII violations must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief."[34] Likewise, the complaint must plead that administrative procedures have been met.[35] This leads to the question of whether a plaintiff has satisfied the administrative filing procedure when the court complaint contains allegations of discrimination that were not included in the EEOC charge. Should the plaintiff be required to file a new charge and wait for the EEOC to conduct an investigation and proceed with informal methods of reconciliation once again? Or should the court assert jurisdiction over the new claim or claims and entertain both old and new claims together?

II. The Scope of the Federal Court Complaint

A. Current Framework Governing Post Charge Title VII Claims

It is not surprising that much litigation has ensued regarding the scope of the Title VII complaint. When the complaint is broader than the EEOC charge, courts have developed two rules to determine whether to allow the complaint to proceed. More than thirty years ago, in Sanchez v. Standard Brands, Inc.,[36] the Fifth Circuit Court of Appeals concluded that the scope of the complaint is not...

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