Title VII requires an employee alleging unlawful discrimination or retaliation to file an administrative charge with the EEOC (or a similar a state or local agency with authority to seek relief) before bringing a suit in court. EEOC is charged with investigating claims and pursuing conciliation between the employee and employer where appropriate. The purpose of the administrative scheme is to avoid litigation as a first step in the process. It allows a neutral third party to investigate the claim and work toward resolution. Litigation is a last resort for claims that cannot be resolved, or where the employee decides to retain private counsel and pursue the claim him or herself.
The Supreme Court has deemed that EEOC investigation and conciliation is essential to Title VII’s enforcement scheme, and therefore has strictly enforced its requirements. It is not a mere procedural hoop through which a claimant has to jump. Courts have held that, unless EEOC has the opportunity to investigate and conciliate a particular claim, Title VII’s process would be frustrated. Thus, for example, an employee may not file an EEOC charge alleging sex discrimination and then sue for sex discrimination and disability discrimination. EEOC could not have investigated or conciliated the disability discrimination claim because it was not part of the charge, and therefore the employee barred from suing on such a claim.
Despite the strict enforcement of the administrative process, for many years there seemed to be a loophole in the Eighth Circuit for claims in which an employee alleged a retaliatory termination followed closely on the heels of the employee’s filing of a discrimination charge. In Wentz v. Maryland Casualty Co., (8th Cir. 1989), Wentz filed an EEOC charge alleging age discrimination, and was terminated one day later. He did not file a second charge alleging retaliation, but nonetheless in a subsequent lawsuit claimed his termination was in retaliation for filing the age discrimination charge. In evaluating whether Wentz exhausted administrative remedies for the retaliation claim, the test applied was whether the claims in the lawsuit were “like or reasonably related to” charges that were timely filed with EEOC. In the Wentz case, the court held the retaliation claim should not be dismissed because is “grew out of the discrimination charge filed with the EEOC.”
The Eighth Circuit closed this loophole in a recent case involving almost identical circumstances. (Richter v. Advance Auto Parts (8th Cir. 8/1/2012)). Richter filed an EEOC charge on August 18, 2009. On the part of the form asking about the basis of the discrimination, she checked “race” and “sex”, but did not check “retaliation”. She informed a regional vice president about the EEOC charge on August 23, and was terminated on August 25. Richter did not fie another administrative charge nor amend the charge that was filed August 18. Nonetheless, when she filed a lawsuit, she alleged her termination was in retaliation for filing the August 18, 2009 administrative charge. The district court dismissed the retaliation claim for failure to exhaust administrative remedies, which was affirmed on appeal.
In its opinion in Richter, the court did not expressly state that Wentz was overruled, but in effect that is what occurred. The Court said it had “considerably narrowed [its] view of what is ‘like or reasonably related’ to the originally filed EEOC allegations.” Strict application of the statutory text requires an employee to file a charge for each discrete act of discrimination. In other words, retaliation that occurs after an employee files an EEOC charge is separate and distinct from the discrimination alleged in the charge, and thus requires a new or amended charge.
One judge dissented, arguing that strict application of the exhaustion requirement in these circumstances was a “needless procedural barrier”, and there were policy reasons for following a standard that judges could apply more flexibly. The majority rejected that view, concluding that strictly following the text was the best guarantee of evenhanded administration of the law.
Richter is an important reminder to employers and defense counsel that the administrative charge still matters, and the failure to exhaust defense remains potent in the right circumstances. Some may claim it is unfair for the employer to rely upon a techincal defense that avoids facing the merits of a retaliation claim. However, given the expense and risks of defending these claims through trial, there is nothing unfair about expecting the employee to follow the law’s procedural requirements before suing.