By the time she made it to court, her discrimination and retaliation claims were D.O.A.

An individual who wants to bring federal disability discrimination and retaliation claims against an employer can’t just go right to court. No, courts would choke with employment lawsuits.

Instead, she must first exhaust her administrative remedies at the U.S. Equal Employment Opportunity Commission by filing a charge of discrimination. But there’s a little more to it than that.

Her charge of discrimination must actually complain of discrimination based on disability. I’ll explain what I’m talking about by discussing this recent Seventh Circuit decision.

According to the plaintiff, her employer reduced her performance rating because of her use of sick leave. Then, her employer supposedly passed her over for a new position due to her frequent sick leave. The plaintiff then contacted the EEOC and told them that she was not selected, she alleged, because of her sick leave restrictions, and she felt she was being discriminated against for filing a union grievance. Later, she filed another handwritten formal administrative complaint in which she made claims of reprisal for the prior EEOC activity in the form of failure to promote and unfair treatment in the form of the sick leave restrictions.

The plaintiff then sued in federal court, alleging disability discrimination and retaliation. Specifically, the plaintiff alleged she was disabled due to her diabetes, refused reasonable accommodation, and faced discrimination during the promotion process because of her disability.

Now, skip the last paragraph and re-read the one above it. Is there anything there about a disability or a failure to accommodate one? No. And the formal EEOC complaint made claims of reprisal for the prior EEOC activity in the form of failure to promote and alleged unfair treatment in the form of sick leave restriction — but not a disability.

Because the plaintiff’s EEOC complaints never specifically mentioned a disability or otherwise alleged that she is disabled, she failed to exhaust her administrative remedies. (The Seventh Circuit also concluded that it was unreasonable to assume that the EEOC investigation would have led the EEOC To recognize more specific claims for disability discrimination.)

The plaintiff’s failure to complain about disability discrimination was fatal to that claim and her retaliation claim. Why? A retaliation claim requires a statutorily protected activity. Although filing an official EEOC complaint may constitute statutorily protected activity, the complaint must indicate that discrimination occurred because of disability or some other protected class. Merely complaining in general terms of harassment or discrimination, without specifying a connection to a protected class or providing facts to create such an inference, is insufficient.

So, the plaintiff lost both of her claims without the employer ever having to defend them on the merits.

There are a few exceptions to the exhaustion requirement.

1. Plaintiffs can skip the administrative complaint process and go directly to court to assert Age Discrimination in Employment Act claims (as long as they give the EEOC at least 30 days written notice).
2. A plaintiff asserting gender-based pay discrimination can bring an action under the Equal Pay Act without exhausting administrative remedies.
3. Claims that don’t involve federal statutes that the EEOC administers generally don’t require exhaustion of administrative remedies. Examples include the Fair Labor Standards Act, the Family and Medical Leave Act, and Section 1981 (race, color, and ethnicity).
4. Many states also have a voluntary administrative complaint process for discrimination claims. New Jersey is one of them.