How long do your employees have to sue you for discrimination?

Perhaps you’ve gotten here because you’ve Googled ‘How long do I have to sue my employer for discrimination?”

Either way, let’s discuss.

I read this federal court decision last night, the inspiration for this post. It’s an action for age discrimination under the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). On July 25, 2020, the plaintiffs filed separate Charges of Discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) against their employer.

Time to file with the EEOC

The court’s opinion doesn’t mention this, but all of the laws that the EEOC enforces, except for the Equal Pay Act, require the filing of a Charge of Discrimination before filing a job discrimination lawsuit against an employer.

There are time limits for filing the Charge. Here is a reminder from the EEOC:

In general, you need to file a charge within 180 calendar days from the day the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. The rules are slightly different for age discrimination charges. For age discrimination, the filing deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law. The deadline is not extended if only a local law prohibits age discrimination.

If there is more than one discriminatory event (e.g., an employee is demoted on one day and fired a month later), the Charge deadline usually applies to each event. However, in harassment cases, the deadline usually runs from the last incident of harassment. We call that the continuing violation doctrine.

And just to be clear, I’m only talking about private sector employees. Federal sector folks may have different rules.

Anyway, back to the decision I read last night.

Time to file a lawsuit

Once the EEOC completes its investigation, it must issue a dismissal and notice of rights (“DNOR”). Here, the EEOC did so on May 7, 2021. Both the ADEA and the ADA allow DNOR recipients 90 days after receipt of the DNOR to file a lawsuit. The action is time-barred if the claimant does not file a lawsuit within the prescribed 90-day period. In plain English, you’re SOL if you are the employee, and you’re dancing a happy dance if you are the employer.

In this case, the 90-day deadline was Thursday, August 5, 2021. (Note: If the deadline falls on a weekend or bank holiday, then the deadline is pushed to the next business day.) The plaintiffs sued on August 12, 2021, 97 days after the EEOC sent the DNORs.

The plaintiffs argued that they received the DNORs in the mail on May 14, 2021, and filed within the 90-day deadline. (In some places, you get an extra three days for mailing.) But the EEOC certified that it also emailed the plaintiffs’ counsel about the DNORs on May 7, 2021.

(Whoops!)

Therefore, the action was time-barred.

Takeaways for employers

Generally, employers can’t control the timing of filing a discrimination lawsuit. But the federal deadlines are strict. Many states have similar deadlines to file with a state agency and a lawsuit afterward. Some states, like New Jersey, don’t require exhausting administrative remedies first. Employees in those states can go right to court. But there are still strict statutes of limitations. Other federal employment laws operate similarly (no need to file first with a state agency). Those, too, have statutes of limitations.

When defending one of these lawsuits, don’t forget about the deadlines. The court isn’t going to raise these defenses on your behalf. But, if you assert them, the lawsuit can halt right in its tracks.