EEOC Revises its Compliance Manual Regarding Charge Filing Deadlines

The U.S. Equal Employment Opportunity Commission (“EEOC”) has, recently, revised its Compliance Manual—the agency’s internal investigation manual—to reflect current law regarding charge-filing time limitations.

In 2002, the U. S. Supreme Court decided National Railroad Passenger Corp. v. Morgan, holding that a Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his charge within the appropriate 180- or 300-day period. Alternatively, a charge alleging a hostile work environment will not be time-barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. In short, the Court held that the timeliness of a charge depends on whether it involves a discrete act or a hostile work environment.

This means charges based on discrete acts, such as failure to hire, denial of promotion, reduction in salary, illegally discriminatory pay, or termination are only actionable if the discrete act occurred within the filing period. A discrete act that occurred before the filing period is untimely even if it is related to other actions that are timely. Thus, for example, a plaintiff alleging years of continuing unequal pay, would be able to recover only for unequal pay occurring within the 300 days before she filed her charge of discrimination, because the issuance of each unequal paycheck constituted a discrete act of discrimination. The Court did note, however, that untimely discrete acts may be used as background evidence in support of timely actions. Accordingly, at trial, the plaintiff may be able to introduce evidence indicating she had never been fairly compensated, despite the fact she could not recover damages for unfair compensation outside the 300 days immediately preceding her charge.

The EEOC has abandoned its incorrect “continuing violation” theory, which it applied in all cases, regardless of whether the alleged conduct fell into the “discrete act” or “harassment” category. The new guidance—which includes helpful examples—can be found on the EEOC’s website at http://www.eeoc.gov/policy/docs/threshold.html#2-IV-C.