If you think that you can forget about a discrimination dispute just because the employee doesn't file an EEOC complaint within the allotted time, you may be in for a surprise. As a new court ruling shows, the EEOC can sue your organization years, or even decades, after the alleged discrimination took place. The EEOC's ability to file claims isn't dependent on whether employees could bring similar claims themselves.
This ruling offers powerful incentive to keep critical records longer than government regulations require—indefinitely in some cases. Develop a record-retention policy that errs on the side of caution. Also, back up e-mail messages and electronic records routinely, so that a hard disc failure or lost CD won't mean important documentary evidence is lost forever.
Recent case: When a Chicago-based law firm demoted 32 partners to counsel, the lawyers didn't go to the EEOC to complain about age discrimination. Still, the EEOC began an investigation anyway, even though too much time had passed for the former partners to file their own EEOC claims.
The law firm argued that EEOC couldn't file suits on behalf of individuals whose own claims would have been procedurally barred. But the appeals court sided with the EEOC, saying the agency has the power to investigate discrimination and can sue for monetary damages even if the injured employees can't. To defend itself, the employer in this case must now dig up employees' old compensation records. (EEOC v. Sidley Austin, LLC, 06-8002, 11th Cir., 2006)