Delaware Employment Attorney, Ron Poliquin of the Poliquin Firm in Dover, Delaware discusses the statute of limitations charge of discrimination.
Statute of Limitations Charge of Discrimination
I am here to answer another question regarding employment law. Our topic today is, I just filed a charge of discrimination with the Department of Labor (DOL) or the Equal Employment Opportunity Commission (EEOC). Now what?
OK prior to suing anybody, prior to even stepping into court in regard to discrimination cases, for the most part we're talking about Title VII and it is the federal statute. There are also state statutes that mirror it. We are talking about race discrimination, disability discrimination, gender discrimination, hostile work environment, anything that deals with the protected class. Prior to suing based on your employment you got to file a charge of discrimination with the part Delaware Department of Labor (DOL) or the Equal Employment Opportunity Commission (EEOC).
You have to do that within 300 days of the last discriminatory act. There are all sorts of caveats that I got to tell you about. That I can't explain it in a 3-minute video you'll have to talk to an experienced employment attorney but that's a statute of limitations 300 days. Just think about it breach of contract 3 years, personal injury 2 years, now you have employment discrimination you got 300 days, not a long time by the way.
There are a lot of times people come to me and they are just SOL, which can stand for something else rather than statue limitations for them. You have to jump on these issues early. You have to see an attorney early. What happens is you have to visit the Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) and see if they can do dual charges. Meaning they can file charges in both for a federal cause of action and a state action with either the Delaware Department of Labor (DOL) office of anti-discrimination or the Equal Employment Opportunity Commission (EEOC). I usually go with advising my clients to file with the Delaware Department of Labor (DOL) office of anti-discrimination and there's a dual charge, so you file on both so that you are covered for both the state cause of action and the federal cause of action. I feel like I'm saying cause of action way too much.
Alright but anyways, you're being discriminated against. What you do is, you call the Department of Labor (DOL) office of anti-discrimination. They are going to make you fill out a questionnaire something like this. It is going to be a bunch of pages based depending on what your claim is. Whether it's racial discrimination, gender discrimination, there's different forms to fill out so first you got to call them to set up an appointment. You got to fill out the intake sheet and then they'll set up an appointment. Now the Department of Labor (DOL) quite frankly is very backlogged, very understaffed and so it's going to take some time for that to happen. You are going to want to schedule that appointment right away because that is when they can back date the charge of discrimination.
So, you are going to want to:
- Call the Department of Labor (DOL).
- Fill out the intake sheet.
- Get an interview to file a charge of discrimination.
A charge of discrimination is going to look something like this. It is going to be a form. I always like to help my clients feel this charge of discrimination out because it's very important. It is going to limit you later, on what you can sue about. You can file a lawsuit about race, color, sex, religion, you got to put the right check the right boxes here. It is really important and sometimes the intake worker for the Department of Labor (DOL) is not going to know exactly what you are looking to do. So, whether it is continuing an action and then you put the jurisdiction and there is going to be a brief statement of allegations. I like to draft this up myself for my client so there's no confusion later on where the defendant, because I represent workers for the most part, employees can say well you did not put that in your charge of discrimination therefore you cannot bring it up in court later on. This is a very important document. It is signed under penalty of perjury, but the confusion comes when you have a client or an individual that's being discriminated against. If this is somebody that's not sophisticated and the Department of Labor (DOL) intake worker doesn't quite know parts of the story. Maybe there not communicating it right and they screw up the charge of discrimination it can really screw the case up.
Okay so you do the interview then you finally get a stamped charge of discrimination. What happens after you get a filed charge of discrimination is, the employer will get that charge of discrimination.
They will be invited to:
- 20 days to answer the charge of discrimination. A lot of times they will ask for extensions on that.
- They can seek mediation.
An answer is basically saying everything in here is untrue because of this, this and this. They are going to respond to the charge. Okay you say you were sexually harassed by boss X. They say that's not the case they deny it basically or they have the option to be invited to mediation. One thing I will guarantee, if your pro se litigant and you go to mediation with an employer do not expect to get much out of the employer. Simply because there's not a lot on the line yet. There's been no lawsuit filed and quite frankly even if you have an attorney during that mediation, a lot of times the employer will try to lowball you. They don't have any incentive at that point. They really have not lost anything. They might have paid an attorney. So, the mediation in my experience has been of limited success. But it's always good to explore mediation and see if there's any opportunity to resolve the case early on. There is a lot of benefit to that.
Okay, let's say they answer it, or you do it in mediation that wasn't successful. After that there will be an investigation by Department of Labor (DOL). How intense the investigation is…I don't know? It depends on how much interest your worker at Department of Labor is interested in investigating the case. It depends how backlogged they are. A lot of times what will happen is the investigator can come to a couple findings. They can do a cause finding, which yes, they find that there's been discrimination or there's been some kind of retaliation against the employee. They will say yes, we find that there has been discrimination. Two, no funding of discrimination or they can say there's no cause. So even after that, what happens after that? There are really no enforcement mechanisms unless the Department of Labor (DOL) takes the case, which they rarely do. You can’t take it to court and do anything with it. It is just a determination. Maybe it puts a little pressure on the employee if there's a cause finding but maybe it doesn’t. I have seen sometimes were it doesn't.
After there's a cause finding or no cause funding or there's going to suit to make. You can request a right to sue letter. The right to sue letter is very important because after you receive a right to sue letter you get 90 days to file suit. Alright so if you get a right to sue letter from Department of Labor (DOL) you are also going to have to request from the Employee Employment Opportunity Commission (EEOC) if you want the right to sue letter in federal court. A lot of stuff going on here, I realize it's complicated, but you got to realize if you don't take anything out of this video the most important thing is you only have 90 days to file suit after a right to sue letter. If early on in this process you think that this investigation by the Employee Employment Opportunity Commission (EEOC) or Department of Labor (DOL) is not going to do you any good, you can request a right to sue letter early prior to the investigation or you can ask them right away if the investigation is going to take more than 180 days. I believe that's the number and almost every investigation is going to take more than 180 days.
A lot of times what I'll do in my cases is request the right to sue letter right away, so the case doesn't drag on. If it doesn't seem like the Department of Labor (DOL) or the Employee Employment Opportunity Commission (EEOC) is going to really do anything about the case, then I'll request a right to sue letter. After you get that right to sue letter that's when you can file a lawsuit in court.
So just to recap:
- You got to file charge of discrimination for dual charge with the Department of Labor (DOL) and Employee Employment Opportunity Commission (EEOC).
- You got to get a right to sue letter prior to filing a complaint in either state or federal court.
There are all sorts of nuances. Reach out to an experienced employment attorney, stand up for your rights. I hope that helps. Thanks!