When talking with individuals concerned about potential discrimination in their workplace, I often find that they are surprised by just how short a time they have to file their claims. In Missouri, employees only have 180 days from the date of the alleged discriminatory act to file a claim with the Equal Employment Opportunity Commission or the Missouri Human Rights Commission (or both!). In some circumstances, where the alleged discrimination went on for years, the individual learns that they can’t challenge any of the potentially discriminatory behavior because the most recent incident occurred more than 180 days ago. However, if there has been at least one incident in the last 180 days, the entire course of conduct can be actionable according to the “continuing violation” theory. A recent case from the 3d Circuit Court of Appeals (DE, NJ, PA, Virgin Islands) analyzes just such a situation, and also provides some guidance on sexual harassment retaliation as a bonus. See Mandel v. M&Q Packaging Corp., No. 11-3193 (3d Cir. Jan. 14, 2013). Hat Tip to the Lawffice Space for pointing this case out.
For all the details and some timely advice, hit the jump…
In Mandel, a female employee resigned from her job after her supervisor repeatedly called her a b***h and told her to “shut the f**k up” during a meeting. The employee then filed a complaint with the EEOC claiming that she had been discriminated against during her entire 11 year career with her former employer. She claimed that she had been referred to as “woman,” “darling,” “the woman,” “fluffy,” “missy,” “hon,” and “toots”; had her appearance and clothing repeatedly commented on; been told by a supervisor that a corporate meeting “will start at my house tonight and we will conclude our part of it tomorrow morning – maybe . . . we may need to postpone the meeting with everyone else a few hours to finish up . . .”; and told by another supervisor that he fantasized about her while having sex with his wife. The EEOC provided a right to sue letter and the employee filed a lawsuit against her employer. The district court dismissed the employee’s claims, finding everything prior to the final meeting to be time-barred and the remaining complaints insufficient to qualify as sex discrimination.
On appeal, the court noted that in order to establish a continuing violation, the employee would need to show that the alleged discriminatory actions were frequent enough and were based on related subject matter. The court noted that the incidents alleged by the employee involved similar repeated conduct by the same set of employers and therefore were sufficient to allege a continuing violation. Therefore, since at least the final incident, the meeting, was within the limitation period, the entire course of conduct should be reviewed by the district court on remand.
Obviously, the first and foremost take away from this case is to be sure that you act quickly if you believe you are being discriminated against. That doesn’t necessarily mean that you immediately have to rush to the EEOC (or MHRC in Missouri), the 180 day time period should give you the opportunity to address the issue with your employer if possible. However, it does not serve to linger on an issue like this, it is all too easy to slip past the time limit and find that you have no recourse at all.
One last tidbit to take from the case involves claims of retaliation for opposing discriminatory actions. In the employee’s EEOC complaint, she claimed she had been too frightened of reprisal to bring the allegedly discriminatory behavior to her employers attention. However, the court wasted no time in pointing out that the failure to act, even if motivated by fear of reprisal, is not protected conduct.
If you feel that you are being discriminated against, it is important that you take action. Be that filing a grievance with your employer or a grievance with the EEOC, it is important to act in a timely manner. MNEA members should contact their UniServ Director immediately if they believe they are the victim of discrimination.