Surprise lawsuit? Check EEOC paperwork

If your organization has been served with a discrimination lawsuit, one of the first steps you should take is to check any paperwork from the EEOC or other discrimination agencies. It’s especially important if you don’t recall a particular complaint, such as age discrimination or sexual harassment, having come up earlier.

It may be that the employee didn’t mention it earlier—and she may be barred from suing over the claim now. If charges come out of the blue, mention it to your attorney when you hand over the lawsuit documents.

Recent case: Lisa, who did not finish high school and was over age 40, took a temporary assignment to fill in for an employee out on maternity leave. She was then hired shortly after on a full-time basis. However, when the company discovered she did not have a high school diploma or the equivalent, it terminated her.

Lisa filed an EEOC complaint, alleging age discrimination. She did not check the box on the form indicating she was filing a Title VII sex discrimination claim, nor did she mention alleged sexual harassment in the body of the complaint.

When she got her right-to-sue letter, she filed a federal lawsuit, alleging sexual harassment under Title VII, and claiming she had been subjected to harassment in the form of crude comments and suggestions.

But the employer quickly pointed out that Lisa had never before alleged sexual harassment. That was enough for the court to dismiss the lawsuit, reasoning that employers must be alerted to such allegations in EEOC complaints. (DeLoach v. Almac Pharma, ED PA, 2018)

Final note: Lisa lost her age claim, too. Her attorneys didn’t allege she had been replaced by a younger worker or provide direct evidence of age discrimination, such as ageist statements.