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You may not even see EEOC complaint until lawsuit hits

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources

In a new twist on an already complicated HR world, an employer now may find itself served with a federal discrimination lawsuit without any inkling that a case was even brewing.

Ordinarily, the employer gets a copy of the employee’s EEOC complaint before anything else happens. It has time to research the allegations and even enter into an informal agreement, with help from the EEOC, to settle the matter.

But what happens if the EEOC doesn’t let you know about the complaint and the employee goes to court? Does the informal complaint the employee gave the EEOC (which somehow didn’t get passed along) count as an EEOC filing?

Since filing an EEOC or state agency complaint is a prerequisite to filing a federal claim, logic dictates that the employer must get a copy. Apparently, logic is dead.

It turns out that the EEOC can mess up, never officially “accepting” the complaint and never telling the employer. The original “filing” meets the employee’s legal obligation to go to the agency first.

Recent case: Morris Holender alleged in a written complaint to the EEOC that when he interviewed at Mutual Industries, the interviewer asked about his age in a roundabout way. The interviewer, according to Holender, said, “I am not allowed to ask these questions under law, but if I were to ask you these questions—but remember that I am not allowed to ask you … what year did you graduate from high school?” Holender’s answer revealed that he was 59 years old.

Holender didn’t get the job and provided an account of what happened to the EEOC. The agency waited several months and then asked for more information it claimed it needed before the charge could be “accepted” for filing. Meanwhile, Holender already had filed a federal Age Discrimination in Employment Act (ADEA) lawsuit.

Mutual Industries wanted the EEOC case dismissed, reasoning it never got a copy of the alleged complaint and never had a chance to resolve the matter informally.

But the 3rd Circuit Court of Appeals refused to throw out the case. It reasoned that the complaint did spell out the age allegations, and therefore qualified as a complaint that met the prerequisites—regardless of how the EEOC handled the complaint in-house. (Holender v. Mutual Industries, No. 06-4632, 3rd Cir., 2008)

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