by Steven L. Brenneman
Before an individual may file a lawsuit under federal and state nondiscrimination laws—such as the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Illinois Human Rights Act (IHRA)—she must first file a timely charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or a parallel state agency, such as the Illinois Department of Human Rights (IDHR). A recent decision illustrates that not every document alleging discrimination filed with such an agency amounts to a “charge.”
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Charged Up
“Sandra” was a customer service representative for Christian Brothers Services, a religious organization that provides health and other services to the Roman Catholic community. In March 2011, Sandra was in an automobile accident. Her injuries caused her to walk with a limp and use a cane. She was fired on February 1, 2012. (The court opinion doesn’t say why, but we assume the employer articulated a legitimate nondiscriminatory reason.)
Believing she had been fired because of a perceived disability, Sandra filed a “complaint information sheet” (CIS) with the IDHR 6 months after her discharge. The CIS is an agency form that asks the complainant for basic information about her claim. On the basis of the CIS, the IDHR determines whether it has jurisdiction. If so, it takes the information from the CIS and drafts an official charge, which the complainant can review, sign, and submit.
However, Sandra and her attorney took no concrete action (other than inquiring about the possibility of mediation, which went nowhere) until March 5, 2013, when Sandra filed a formal charge of discrimination with the IDHR. In accordance with a work-sharing agreement with the EEOC, only then was Sandra’s IDHR charge automatically cross-filed with the EEOC.
Charge On
The March 5 charge was filed 398 days after Sandra’s termination date. As seasoned HR professionals know, the deadline to file a charge with the EEOC is 300 days (at least in states such as Illinois that have a state or local fair employment practices agency). Therefore, the March 5 charge was untimely. Without a timely administrative charge, Sandra failed to exhaust her administrative remedies and couldn’t proceed with a lawsuit.
“But wait!” said Sandra. Her CIS was filed well before the 300-day deadline had run. If the CIS constituted a charge under the law, then she met the deadline and her claim could be heard. A federal judge in Chicago rejected her premise that the CIS was a charge and accordingly entered judgment in favor of Christian Brothers. Sandra appealed.
In the 7th Circuit, Sandra argued that the CIS was a charge because it contained a statement that authorized the EEOC to look into the alleged discrimination. The 7th Circuit observed that the EEOC’s regulations deem a charge sufficient when it is a “written statement sufficiently precise to identify the parties, and to describe generally the action or practice complained of.” Sure enough, Sandra’s CIS satisfied those requirements.
In Charge
But a charge is more than that, said the 7th Circuit. “A charge is the administrative equivalent of a complaint filed in court,” reasoned the court. Therefore, to be a charge, a document must request relief based on the alleged discrimination. In this case, the CIS didn’t request any relief and therefore didn’t constitute a charge.
In addition, the court noted that the CIS itself stated, “THIS IS NOT A CHARGE,” followed immediately by a statement that “if IDHR accepts your claim, we will send you a charge form for signature.”
In these respects, the CIS “made clear that the claim was merely a prelude to a charge, and not the charge itself; and a prelude to what turned out to be nothing.” In Sandra’s case, she didn’t file a formal charge until well after the 300-day time period had expired, so her lawsuit was barred. Carlson v. Christian Brothers Services, No. 15-3807 (7th Cir., Oct. 27, 2016).
Take Charge
Note to file: When you receive the dreaded envelope from the EEOC or IDHR notifying you of a charge filed against your organization, check to see if a timely, valid charge was actually filed. As this case shows, not every paper filed with these agencies amounts to a charge.
In this case, the EEOC even filed a friend-of-the-court brief urging the 7th Circuit to adopt its interpretation that Sandra’s CIS was the equivalent of a charge. No dice, said the court. Remember that next time you are faced with responding to something that isn’t charge-worthy.
This article was written by Steven L. Brenneman of Fox, Swibel, Levin & Carroll, LLP, and an editor of the Illinois Employment Law Letter. He can be reached at sbrenneman@fslc.com