1) In non-deferral
jurisdictions, a charging
party must file their charge within 180 days of the allegedly discriminatory act or practice. See
42 U.S.C. §2000e-5(e)(1);
42 U.S.C. §12117(a);
29 U.S.C. §626(d)(1).
2) In deferral
jurisdictions, a charging
party has up to 300 days to file a charge with the commission. See
42 U.S.C. §2000e-5(e)(1);
42 U.S.C. §12117(a);
29 U.S.C. §626(d)(2) and
§633(b).
3) A deferral
jurisdiction is a state with “a comprehensive law and an investigatory agency with enforcement powers that has applied for deferral status.”
Fair Employment Practices Manual, §451.2 (BNA). A list of approved deferral agencies can be found at
29 C.F.R. §1601.74.
4) Neither the deadline for
filing a charge, nor the 90 day deadline for
filing suit after receipt of the
notice of right to sue are
jurisdictional. They are subject to
waiver,
estoppel, and
equitable tolling. See
Irwin v. Dept. of Veterans Affairs, 498 U.S. 89 (1990);
Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984);
Zipes v. TWA, 455 U.S. 385 (1982).
5) The time to file a charge, or to file a lawsuit where there is no administrative exhaustion requirement (ex.,
42 U.S.C. §1981), starts to run when the individual is notified of the final adverse employment
action, not when the
action is put into effect, even if there is a process for reconsideration still available to the plaintiff. See
Delaware State College v. Ricks, 449 U.S. 250, 257-58 (1980).
6) In pay
discrimination cases, each discriminatory paycheck is an
actionable incident of
discrimination from which the
filing deadline is calculated. See
Bazemore v. Friday, 478 U.S. 386, 395-96 (1986).
7) Discrete retaliatory or discriminatory acts such as hiring, firing, demotion, and the like, occur for purposes of computing
filing deadlines on the day the event happens. See
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-15 (2002).
8) Unlike discrete events,
Morgan held that a
claim of hostile work environment is one practice even though it is ordinarily composed of a number of separate
actions, some of which may fall outside the period of limitations. “Provided that an act contributing to the
claim occurs within the
filing period, the entire time period of the hostile environment may be considered by the
court for purposes of determining liability.”
Morgan, 536 U.S. at 117.
9)
Morgan expressly provides employers a
laches defense in hostile environment
claims, and indicates that other
equitable defenses may be available as well.
Morgan, 536 U.S. at 121-22.
10) The
laches defense “’requires proof of (1) lack of diligence by the
party against whom the
defense is asserted, and (2)
prejudice to the
party asserting the
defense.’”
Morgan, 536 U.S. at 121-22 (citations omitted).
11)
Morgan does not address when an act or practice occurs in the context of a pattern or practice
case. Morgan, 536 U.S. at 1115 n. 9.
12) The time to file suit under
42 U.S.C. §1981 is not
tolled during the pendency of an
EEOC charge. See
Johnson v. Railway Express, 421 U.S. 454 (1975).
13) The time to file suit or a charge is not
tolled pending the exhaustion of an internal
review procedure as to a decision that is otherwise final. See
Delaware State College v. Ricks, 449 U.S. 250 (1980).
14) The time to file suit or a charge is not
tolled during a collectively
bargained grievance procedure. See
International Union of Electrical, Radio and Machine Workers, AFL_CIO, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229 (1976).
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
