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What if an employee files her charge too late

There are four basic exceptions to the rule that an employee cannot proceed with her lawsuit if she did not timely file a charge with the EEOC:

1. The continuing violation exception. This exception usually applies in gender harassment cases.  As long as the harassment was part of a continuing violation, then the employee may sue for all of the harassing acts (even those more than 180 days or 300 days as the case may be) on the basis that the harassment all constitutes a continuing violation.

   Case example: The U.S. Supreme Court held in National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002) that with respect to non-discrete acts, such as hostile work environments, as long as part of the claim occurs within the 180 or 300 day filing period, a plaintiff may recover for all of the acts contributing to the hostile work environment no matter how old the acts are. However, the Supreme Court states that an employer would have available to it any equitable defenses, such as laches. Justice O'Connor, joined by others, dissents with respect to the majority's holding as to hostile work environment claims.
    

2. The waiver exception. This issue normally arises in the context of a claim by a federal employee.  Under the statutory scheme for federal employees, the federal agency ultimately decides whether it discriminated against the employee.  The employee can then appeal to the fedeal district court.  If the federal agency issues its finding and makes no finding that the fedeal employee's administrative complaint was untimely, then in a subsequent lawsuit, the federal agency may be deemed to have waived this defense.

   Case example: In Ester v. Principi, 250 F.3d 1068 (7th Cir. 2001), the court held that when a federal agency decides the merits of a complaint, without addressing the question of timeliness, it has waived a timeliness defense in a subsequent lawsuit.
    

3. The equitable estoppel exception. This exception basically means that because the employer took some action that caused the employee to file his or her charge too late, the employer cannot ask the court to dismiss the lawsuit because the charge was filed too late.
   
   For example, on May 1, you are told by your supervisor that you will be demoted effective November 1. You believe the demotion is based of your gender. You realize that your time for filing an administrative charge probably began on May 1 (the date you were told of the official decision) -- not November 1 (the date of the scheduled demotion). But on May 7, the vice president (to whom your supervisor reports) tells you that the demotion decision is not final and things look pretty good for you. Based on that conversation, you do not file an administrative charge.
   
   On November 1, you are demoted and you file your administrative charge November 2. You live in a state where you are required to file your administrative charge within 180 days. Once the case reaches federal district court, your employer asks the court to dismiss your lawsuit because you did not file your charge on time. Under these facts, the court is likely to find that because you reasonably relied on the comments of the vice president, it would be unfair to allow the employer to raise this defense. In other words, the equitable (or fair) thing to do is to stop (or estop) the employer from raising this defense -- hence the term, equitable estoppel.
   
   Case example: Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363 (D.C. Cir. 1998). Employee entitled to equitable estoppel where company official arguably made misleading statements to employee.

4. The equitable tolling exception. This exception is based on the employee's excusable neglect. In other words, the employer has not caused the employee to file his or her charge too late, but due to other circumstances beyond the employee's control, the only fair thing to do is to excuse the employee's tardiness.

Case Example Brenda Shempert was required to file an EEOC charge within 180 days of the alleged gender harassment. The EEOC had Shempert fill out an EEOC Intake Questionnaire within the 180 days, but did not give her an administrative charge to fill out until after 180 days. The EEOC mistakenly thought that filling out the Intake Questionnaire within 180 days would be sufficient. Since Shempert's late filing was due to her reasonable reliance upon the EEOC, the Eighth Circuit decided that she was entitled to equitable tolling. In other words, even though she neglected to file her charge within the time required, her tardiness was excusable. Shempert v. Harwick Chemical Corp., 151 F.3d 793 (8th Cir. 1998). By the way, an Intake Questionnaire is a form that the EEOC may initially use with an employee to obtain information about the employee's claim.

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