Courts increasingly insist that employees meet deadlines for filing EEOC or other discrimination complaints. The law allows employees just a short period of time to start the lawsuit process after an employer’s adverse decision.
Smart employers have systems that precisely track internal complaints. With those in place, employers can more easily argue that the employee waited too long to sue.
Take, for example, an employee who complains to HR that she was demoted in retaliation for an earlier complaint. If her employer logs the call and then transcribes the call contents—and records the date of the alleged retaliatory demotion—it will have a date “stamp” from which to count whether the employee filed her EEOC or other discrimination complaint on time.
Recent case: Johane Tillery worked for the U.S. Department of Homeland Security (DHS) at Palm Beach International Airport. She requested and was approved for a transfer to Tucson, Ariz.
Then she complained that her supervisor had sexually harassed her. Shortly after, her transfer approval was rescinded and she was terminated instead.
Federal employees are required to contact their agency’s Equal Employment Opportunity (EEO) office within 45 days of an alleged instance of discrimination or retaliation. If they don’t they lose their right to sue. That’s a tighter deadline than private-sector employees have.
When Tillery filed her retaliation lawsuit, the DHS said the case should be tossed out because she had not told the EEO office about the alleged retaliation within 45 days of being fired.
Tillery countered that she had tried numerous times in the month after being fired to call the EEO office. She said she left messages that were not returned until after the 45 days elapsed.
The DHS explained to the court that it uses a telephone hotline to take complaints. There is a strict policy requiring a designated individual to return the call within 24 hours and note the nature of the complainer’s message as well as the return call. It said there were no records of any calls from Tillery until after 45 days had passed. Plus, the department said its records show it did return her call within 24 hours of her message.
The court tossed out Tillery’s case, choosing to believe the employer rather than the employee, based on the DHS’ clearly outlined and executed hotline protocol. (Tillery v. Napolitano, No. 10-11657, 11th Cir., 2010)
Final note: Make sure employees know how to complain about discrimination, retaliation and harassment, but resist the temptation to give them too many ways. If you tell employees they can talk to their supervisor, call the HR office, call a hotline or send an e-mail, you will find yourself trying to monitor all those avenues. Stick with no more than two.
If you tell employees to contact a supervisor, be sure to allow an alternative if the supervisor is the source of the alleged problem. Include reporting discrimination, retaliation and harassment in supervisor training so that they will know what to do.
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