1.2 EXHAUSTION OF ADMINISTRATIVE REMEDIES
1.201 In General. The EEOC and the deferral agencies 54 must enforce Title VII's nondiscrimination provisions. Title VII provides for a private right of action, but only after certain administrative steps have been taken. In Fort Bend Cty. v. Davis, 55 the United States Supreme Court held that Title VII's charge-filing requirement, 42 U.S.C. § 2000e-5(e), is a mandatory processing rule, not a jurisdictional prescription. In that case, a former employee filed an EEOC charge alleging sexual harassment and retaliation but did not assert religious discrimination in the formal charge document. After several years of litigation, the employer asserted that the district court lacked jurisdiction over the religion-based claim because it was not stated in the EEOC charge. The United States Supreme Court concluded that the employer forfeited the defense because it did not timely raise it.
Davis overturns longstanding Fourth Circuit precedent holding that administrative exhaustion is a jurisdictional prerequisite to filing a Title VII
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lawsuit in federal court. 56 As a result of Davis, employers will no longer be able to assert the failure to exhaust defense at any point in the litigation but instead must do so in a timely manner.
The scope of a plaintiff's federal Title VII lawsuit, however, is still "determined by the . . . contents' of the charges filed with the EEOC or a corresponding state agency during the process of exhaustion." 57 In other words, "'[o]nly those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent . . . lawsuit.'" 58 For example, mere mentions of complaints referenced in a charge, without checking the "retaliation" box, is not enough to exhaust administrative remedies as to a retaliation claim when the charge does not state that the employee complained about discrimination.
In Federal Express Corp. v. Holowecki, 59 the United States Supreme Court held that an "intake questionnaire" and accompanying affidavit submitted to the EEOC constituted a "charge" of discrimination for purposes of the ADEA. The court accepted the EEOC's position that, in addition to the information required by the regulations (namely, an allegation and the name of the charged party), if a filing is to be deemed a charge, it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee. The employee's filing met this test.
In Enoch v. Becton, Dickinson & Co., 60 the court applied the Supreme Court standard affording broad construction to EEOC charges and found that the plaintiff did not sufficiently raise an age discrimination claim when he did not assert such a claim in his intake questionnaire, did not check the box for
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age discrimination in his formal Charge of Discrimination, and never expressly connected any of his allegations of discrimination to his age.
In Balas v. Huntington Ingalls Industries, 61 the Fourth Circuit found that allegations made in statements to the EEOC do not satisfy the exhaustion requirement, noting that only allegations in the EEOC charge itself may be considered when determining exhaustion of remedies, and not intake questionnaires and letters from the employee to the EEOC. Therefore, even though intake questionnaires may constitute a charge—to the extent that a separate charge is not filed—if a formal charge is filed, a plaintiff's later lawsuit is limited to the allegations made in that formal charge or to charges arising from an investigation of the formal charge. 62
1.202 When Filing Period Begins.
A. In General. The filing period begins to run when the alleged unlawful employment practice occurs. 63 A seniority system may be challenged as discriminatory either when it is adopted, when an individual becomes subject to it, or when an individual is injured by its application. The limitations period may be tolled if the employee is excusably ignorant of the discriminatory act. 64
B. Continuing Violations. In National Railroad Passenger Corp. v. Morgan, 65 the United States Supreme Court severely limited what types of conduct could constitute a continuing violation. The Court limited the use of incidents that fell outside of the statutory filing period to those matters that could be characterized as evidence of hostile work environment because, of necessity, that type of claim could not be described as a single incident or occurrence.
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In a case decided before Morgan, the United States District Court for the Eastern District of Virginia clarified the circumstances under which the court will apply the continuing violation doctrine. In Stringfield v. Christopher Newport University, 66 the court noted that the traditional test for interpreting whether a continuing violation exists involves three factors:
(1) whether the alleged acts involve the same type of discrimination; (2) whether the alleged acts are frequent; and (3) whether the alleged acts "have a degree of permanence which would trigger an employee's awareness and duty to assert his or her rights." 67
Finding that the events in the case did not meet this standard because they involved "action or inaction by different individuals concerning incidents as varied as scheduling, publications, evaluations and funding," the court held that the plaintiff had not alleged a continuing violation.
In Lewis v. Norfolk Southern Corp., 68 the court limited the application of the continuing violation doctrine, holding that the continuing violation theory did not apply to the time in which a lawsuit must be filed but only to the filing of the administrative charge. Strictly interpreting Morgan, the court found that the "timing requirements for filing a lawsuit following an EEOC right-to-sue notice [had] been strictly construed." 69 The court also held that the EEOC had to follow the literal language of 29 C.F.R. §§ 1601.1 and 1601.21(d) concerning reconsidering a charge under the Age Discrimination and Employment Act.
In Williams v. Giant Food, Inc., 70 the court again noted that the decision in Morgan curtailed the type of claims that would still be characterized as "continuing violations." The court also held that the plaintiff's failure to offer any corroboration of her self-serving testimony that she performed satisfactorily precluded her from establishing a case. Since Morgan, the Fourth Circuit has made it clear that the events occurring within the limitations
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period do not, by themselves, need to establish a hostile environment; the continuing violations doctrine allows all related events to be combined to establish a hostile environment. 71
In Gilliam v. South Carolina Department of Juvenile Justice, 72 the Fourth Circuit held that the district court erred in declining to apply the continuing violation doctrine. The court found that under Morgan an incident falling within the limitations period need only to have contributed to a hostile work environment for the continuing violation doctrine to apply.
The district courts in the Fourth Circuit continue to strictly construe the continuing violations doctrine in accord with Morgan but, since Gilliam, those courts have analyzed whether alleged discriminatory acts are significantly related to each other to an extent that would comprise one unitary, ongoing unlawful employment practice and whether at least one of the alleged discriminatory acts occurred within 300 days of filing of the EEOC charge. 73
1.203 Filing with Deferral Agency. The EEOC may refer a case initially filed with it to a state or local "deferral agency." A referral institutes the agency's proceedings within the meaning of the Act, and the agency has exclusive jurisdiction for a period of 60 days. 74 Because Virginia had a state deferral agency, formerly the Virginia Human Rights Council, Virginia is regarded as a "deferral state." 75 Effective July 1, 2012, the functions previously performed by the Virginia Human Rights Council were transferred to the Office of the Attorney General, Division of Human Rights. 76
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1.204 Filing with the EEOC.
A. Timeliness. The employee must bring the complaint within 180 days from the date that the last complained of activity occurred. In some cases, this period may begin to run as soon as the employee is aware that an adverse employment decision will take effect in the future. 77 If the charging party delays in bringing the complaint beyond 180 days, the EEOC does not have jurisdiction over the claim.
B. Confidentiality. All charges filed with or by the EEOC are confidential and cannot be made public until judicial proceedings have been initiated. However, the EEOC provides copies of respondent's position statements and non-confidential documents to charging parties upon request.
C. Withdrawal of a Charge. Once a verified charge is filed, the charging party may withdraw the charge only with the permission of the EEOC. The request for withdrawal, as part of a settlement or otherwise, must be made in writing and signed by the charging party. This notice must provide the EEOC with the circumstances leading up to the withdrawal and must include a statement that the decision to withdraw is voluntary and not the result of threats, intimidation, or harassment.
D. Initial Contact. Within 10 days of asserting its jurisdiction, the EEOC must give notice to the employer and any identified supervisors that a charge has been filed. Sexual harassment claims have high priority with the EEOC and are generally acted on promptly.
E. Detailed Affidavit. The notice of discrimination to the employer will include basic allegations. The charging party must provide a detailed affidavit to the EEOC, but this document is rarely provided to the employer. 78...
