The Young Lawyer

• Publication year: 1999
• Pages: 32
• Citation: Vol. 12 No. 2 Pg. 32

The Young Lawyer Vol. 12 No. 2 Pg. 32 Utah Bar Journal February 1999

Filing an Employment Discrimination Claim

Todd Weiler

Before filing a claim for employment discrimination, every practitioner should carefully evaluate the claim to determine whether it is actionable. Although the Utah Antidiscrimination Act^[1] prohibits discrimination in employment based on race, color, sex, religion, national origin, age, or handicap, an employer has discretion to choose among candidates so long as the decision is not based on unlawful criteria. See Utah Code Ann. §34A-5-101 to -108 (1997); University of Utah v. Industrial Comm'n, 736 P.2d 630 (1987). For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Hirase-Doi v. U.S. West Communications, 61 F.3d 777 (10th Cir. 1995).

Section 34A-5-106 provides a detailed list as to what constitutes and what does not constitute a discriminatory or unfair employment practice. Utah Code Ann. §34A-5-106. A complaining party may be held liable for an employer's costs and attorney's fees associated with responding to a claim without merit. Utah Code Ann. §34A-5-107 (8) (b). An actionable claim may be filed with the state administrative agency, the Utah Labor Commission, or directly with the federal agency, the Equal Employment Opportunity Commission ("EEOC").

FILING A CLAIM WITH THE UTAH LABOR COMMISSION.

Under state law, the Labor Commission has jurisdiction over unlawful employment practices and discrimination in Utah. It has the power to receive, reject, investigate, and hold hearings on complaints alleging discriminatory employment practices. Utah Code Ann. §34A-5-104. Any aggrieved person may request agency action by filing a verified general intake form with the Labor Commission. Such a request must be filed within 180 days after the occurrence of the discriminatory act or practice. See also Retherford v. AT&T, 844 P.2d 949 (Utah 1992).

The Labor Commission in Utah is under contract with the EEOC to conduct investigations of claims of unlawful employment discrimination within the state. As such, a filing of a request for agency action in Utah is automatically jointly filed with the EEOC's regional office in Phoenix, Arizona. If the Labor Commission receives a request for action after the 180-day time period has run but before the expiration of 300 days, then the request is filed directly with the EEOC. A claim filed after 300 days is not actionable.

Sections 34A-5-107 and 63-46b-3(3) of the Utah Code outline the procedure for an aggrieved person to file a claim with the Utah Labor Commission. Generally, the request for agency action must be in writing and include information similar to that usually found in a complaint filed with the district court. See Utah Code Ann. §63-46b-3(3)(a) (1997). The request should be filed with the Labor Commission, and copies should be mailed to everyone with a direct interest in the requested action.

After a request for agency action is filed, the Labor Commission will assign an investigator to attempt to effect a settlement between the parties by conference, conciliation, or persuasion. If a quick settlement is not reached, the investigator is required to make a prompt and...