Understanding Charges of Discrimination
Our Firm regularly handles charges of discrimination in the State of Missouri. When an employee believes he or she has been discriminated against because of his or her race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information, the employee has the right to file a “charge of discrimination” with the appropriate government agency or agencies.
A charge of discrimination is a signed statement asserting that an employer, union or labor organization engaged in employment discrimination. It is a formal request for a government agency, like the federal Equal Employment Opportunity Commission (“EEOC”) or the Missouri Commission on Human Rights (“MCHR”), to take remedial action. With the exception of the Equal Pay Act, employment discrimination laws generally require an employee to file a charge of discrimination with the appropriate government agency before the employee has the right to file an employment discrimination lawsuit against an employer.
Filing a formal charge of discrimination is a serious matter. One must be very careful in pursuing or responding to a charge of discrimination, as the statements made and actions taken early on in the process often affect the ultimate outcome of the charge and any subsequent lawsuit(s). As a result, hiring experienced and knowledgeable legal counsel early in the process is of paramount importance to your success in handling a charge of discrimination.
Filing or Responding to a Charge of Discrimination
A charge of discrimination can be filed in several ways, including online, in-person, by telephone, or by mail. No matter how it is filed, or with whom it is filed, there are several critical issues which you must consider early in the process. Issues of timing and notice stand at the forefront. Both federal and state laws set forth strict rules regarding when a charge of discrimination must be filed. While these deadlines may vary depending on the circumstance or type of employee, charges of discrimination must generally be filed within one hundred and eighty (180) days of the last day the discrimination occurred. See, e.g., § 213.075.1 RSMo. If they are not, one might not be able to bring a charge of discrimination, or may have their charge of discrimination dismissed (and subsequent ability to bring an employment discrimination lawsuit eliminated).
The issue of timing is very closely related to the issue of notice. In 2013, the Missouri Supreme Court addressed and discussed the multifaceted importance of timing and notice in relation to filing charges of discrimination. See Farrow v. Saint Francis Med. Ctr., 407 S.W.3d 579, 594 (Mo. banc 2013). In Farrow, the Court first elaborated on how, as a technical matter of civil procedure, an employer wishing to challenge the timeliness of filing a charge of discrimination must do so. Id. at 588-91. The trial court had dismissed the plaintiff’s employment discrimination claims as untimely because no dispute existed that the charge was filed 230 days after the last alleged discriminatory act—that is, the nurse’s termination on December 10, 2008. See id. at 587. However, the Missouri Supreme Court reversed the trial court’s decision in part and concluded the employer had waived its ability to challenge timeliness of the plaintiffs’ charge because it did not raise the issue at the earliest opportunity (i.e., while the charge was pending before the government agency or before a lawsuit was subsequently filed). Id. at 588-91.
However, the Court in Farrow then discussed and stressed the importance of notice to the employer in relation to what an individual specifically alleges (or does not allege) in his or her charge of discrimination. Id. at 593-94. In her lawsuit, the plaintiff claimed, in part, the employer retaliated against her by refusing to provide her with meaningful review of the termination of her employment after the termination occurred on December 10, 2008. Id. The Farrow Court noted: “[i]n order to exhaust administrative remedies under the MHRA, a claimant must give notice of all claims of discrimination in the [charge of discrimination].” Id. The Court reasoned, while charges of discrimination are “interpreted liberally in an effort to further the remedial purposes of legislation that prohibits unlawful employment practices,” they must contain allegations that will likely or reasonably put an employer on notice of the claims the plaintiff intends to bring. See id. The Court concluded the plaintiff’s charge of discrimination contained “no allegations whatsoever” about post-termination retaliation in relation to review of her termination. Id. Accordingly, the Court affirmed the trial court’s dismissal of this specific claim. Id.
But this is not the end of the story. Following Farrow, in 2018, the Missouri legislature amended the law to expressly provide that the timely filing of a charge of discrimination is a “jurisdictional condition precedent to filing a civil action” and to expressly permit an employer to raise the defense of an untimely filed administrative complaint at any time, including in a civil action, “regardless of whether the employer asserted the defense before the [MCHR].” See § 213.075.1 RSMo.
What is clear from Farrow and subsequent legislative action is that both employers and employees should know the proper manner and method by which to file or respond to a charge of discrimination. Even a meritorious or complete defense, like a challenge to the timeliness of filing a charge, may be lost if not raised at the right time and in the right way. In light of recent legislative action and amendments, Courts of Appeals throughout the State of Missouri continue to examine and decide many issues related to how, when, and where claims or defenses related to charges of discrimination must be raised. See, e.g., Bi-State Development Agency v. MCHR, 582 S.W.3d 654 (Mo. Ct. App. 2019); McDonald v. Chamber of Comm. Of Independence, 581 S.W.3d 110 (Mo. Ct. App. 2019). Our Firm monitors the legal developments in these and other areas to ensure we safeguard our clients’ rights and interests to the greatest extent practicable in filing or responding to a charge of discrimination.
Investigating Charges of Discrimination
At our Firm, we pride ourselves with working closely and spending substantial time with our clients to understand in detail the events, statements, actions, omissions and other circumstances related to an allegation of employment discrimination. The Missouri Supreme Court has recognized that employment discrimination cases “are inherently fact-based and often depend upon inferences rather than on direct evidence.” Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818 (Mo. banc 2007). For this reason, we know the critical importance of conducting a thorough investigation of employment situations with the assistance of legal counsel prior to filing or responding to a charge of discrimination.
Unfortunately, some employees and employers, without the aid of legal counsel, immediately file or respond to a charge of discrimination without developing the necessary factual background and support to clearly articulate how, when, and why the alleged discrimination occurred or did not occur. Sometimes, employees or employers will speak to a government investigator about their claims or defenses without legal counsel or representation. And sometimes employers will simply ignore a charge of discrimination. Doing any of these things can have serious detrimental effect on your rights, legal protections, and the trajectory of a charge of discrimination or subsequent lawsuit. Moreover, mishandling a charge of discrimination can destroy an individual’s or company’s reputation. Our preliminary investigative work—whether its careful document review, witness interviews, or assisting clients through government-led investigations—helps individuals and businesses understand what rights, claims, defenses, and liabilities will likely be at stake. Developing this type of detailed legal and factual understanding with clients early in the process enables our clients to make intelligent decisions as to how to handle a charge of discrimination.
For further information regarding how to handle a charge of discrimination, please feel free to contact Attorney Kevin J. Dolley directly at (314) 645-4100 or by email at email@example.com.