1) The charge
filing requirement is not
jurisdictional and is subject to
waiver and
estoppel. See
Zipes v. TWA, Inc., 455 U.S. 385, 395 (1982).
2) Commissioner’s charges are subject to greater requirements of specificity than individual charges. See
EEOC v. Shell Oil Co., 466 U.S. 54, 73 (1989).
3) The
ADEA and
EPA do not provide for Commissioner’s charges, and the
EEOC uses directed investigations, sometimes followed by suit by the
EEOC, to serve the same role of initiating investigations and enforcement in the absence of a charge by a person aggrieved.
4) When one charge of
discrimination has been filed by a named plaintiff, in some circumstances other named plaintiffs or interveners may sue as to the same practice without having to file their own
EEOC charges. Because of the importance of
notice to the
EEOC and the defendant, the success of such “piggy backing” efforts may depend on whether the charge on which the others seek to “piggy back” put the
EEOC and the defendant on
notice of large-scale or class-type liability, or instead that the number of the persons seeking “piggy backing” is small. See e.g.,
Howlett v. Holiday Inns, Inc., 49 F.3d 189, 194 (6th Cir. 1995) (
ADEA; only one piggy backer);
Tolliver v. Xerox Corp., 918 F.2d 1052, 1057-58 (2nd Cir. 1990) (
Title VII), cert. denied, 499 U.S. 983 (1991));
Anderson v. Montgomery Ward & Co., Inc., 852 F.2d 1008 (7th Cir. 1988) (
ADEA);
Levy v. U.S. General Accounting Office, 175 F.3d 254, 255 (2nd Cir.) (
per curiam), cert. denied, 528 U.S. 876 (1999) (rule did not apply where the additional plaintiffs had filed their own charges and let their
notices of right to sue expire);
Whalen v. W.R. Grace & Co., 56 F.3d 504, 507 (3rd Cir. 1995) (recognizing conflicting
authority but
holding that “single
filing”
rule does not allow
amendment of an individual
ADEA complaint, not alleging a
class or
representative action, to add new plaintiffs who have not filed charges with the
EEOC, and
holding that new individuals may not “opt in” to the individual
action);
Forehand v. Florida State Hospital at Chattahoochee, 89 F.3d 1562, 1565 n. 8 (11th Cir. 1996) (
dictum).
5) Although
EEOC charges are intended to put the Commission and the
respondent on
notice of the alleged acts of
discrimination,
EEOC charges are not construed with “literary exactitude,” and the classic test is that “it is only logical to limit the permissible scope of the civil
action to the scope of the
EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination.”
Sanchez v. Standard Brands, 431 F.2d 455, 465-66 (5th Cir. 1970).
6) The
courts have generally
held that plaintiffs may include post-charge retaliation
claims in their
judicial complaints without having filed a retaliation charge with the
EEOC. See, e.g.,
Clockedile v. New Hampshire Department of Corrections, 245 F.3d 1, 4-5 (1st Cir. 2001);
Anderson v. Reno, 190 F.3d 930, 938 (9th Cir. 1999).
7) Even though the
statutes provide that a civil
action may be brought against a
respondent named in the charge,
courts have taken different views on what it means to be “named” in the charge, and tend to focus on the reasonable scope of the
EEOC investigation, actual
notice to the unnamed
party, and identity of interest between the named and unnamed
parties.
8) A plaintiff is required to have exhausted
claims, not the
evidence on which the plaintiff relies to establish the
claim. See, e.g.,
Rutherford v. Harris County, 197 F.3d 173, 186 (5th Cir. 1999);
Kline v. City of Kansas City Fire Department, 175 F.3d 660, 668 (8th Cir. 1999), cert. denied, 528 U.S. 1155 (2000).
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
Item 12-C | EEO Law Basics
