A. Threshold Requirements For Title VII Coverage
Title VII applies to most large private employers as well as to governmental employers. With regard to employers, Title VII states:
(a) Employer practices. It shall be an unlawful employment practice for an employer-
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin.
42 U.S.C. 2000e-2. Title VII defines "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." 42 U.S.C. 2000e(b). Title VII therefore covers an employer who has fifteen or more employees on his payroll for at least twenty weeks during a given year. Once coverage is established in a given year, Title VII coverage will extend through the following year, even if the number of employees falls below the minimum.
As to what is an "employee," the statute is not limited to traditional definitions of employees. "Employee" includes all who "are susceptible to the kind of unlawful practices that Title VII was intended to remedy." Thus, Title VII may apply even if the employee is an independent contractor.
The statute also applies to state and local governments through 42 U.S.C. 2000e(a), and to the federal government via 42 U.S.C. 2000e-16. In fact, Title VII is the exclusive judicial remedy offering injunctive relief for discrimination in federal employment. Title VII does not apply to religious organizations. 42 U.S.C. 2000e-1. 42 U.S.C. 2000e-2(b) - (d) brings employment agencies, labor organizations, and training programs under the umbrella of Title VII.
B. Title VII Procedures: Private Defendants
1. Deferral to State Agencies
The majority of jurisdictions have "deferral agencies," typically denoted as a "state equal employment opportunity agency" or "human rights commission." These are state or local agencies authorized to seek or grant relief from the discriminatory practice or to institute criminal proceedings. 42 U.S.C. 2000e-5(c). Charges must be filed with both the state or local agency as well as with the EEOC. The EEOC is required by statute to allow a deferral agency not less than 60 days after the charge is filed to dispose of the charge. 42 U.S.C. 2000e-5(d). The majority of states require a charge to be filed with their deferral agency within 180 days following the act of discrimination.
In deferral jurisdictions EEOC has no jurisdiction unless a timely charge is first filed with the deferral agency. Although EEOC may initially accept a charge and file with the state agency on its own initiative, this should not be replied upon. The aggrieved party should file a timely charge directly with the deferral agency to ensure meeting this prerequisite to filing suit. A local agency may waive its 60-day deferral period through a work-sharing agreement with the EEOC, thus "terminating" the agency's proceedings so that the EEOC may deem a charge filed and begin processing it.
2. Filing with the EEOC
In states without a deferral agency, charges of specific discriminatory acts must be filed with the EEOC within 180 days after the discriminatory act occurred. This and other time periods specified by Title VII may be tolled when equity demands modification. Where there is a state deferral agency, the time period for filing with the EEOC is extended to 300 days, or within 30 days after receiving notice that the state has terminated the proceedings under state or local law, whichever is earlier. The EEOC may, if it receives the charge first, file the state charge on its own initiative and then automatically re-file the charge with itself after the 60-day deferral period expires. The surest course of action, however, is to directly file the EEOC charge once the state deferral period expires or the state terminates its investigation, whichever comes first.
Once the charge is timely filed, EEOC has 180 days of exclusive jurisdiction over the charge. Because the state deferral period is mandatory, the combined effect is that a plaintiff must first await the results of state efforts for 60 days, then ensure that an EEOC charge is filed, and then await the results of EEOC conciliation efforts for 180 days. There is no statute of limitation on the EEOC's investigation and conciliation efforts.
3. Civil Actions by the EEOC or by the Aggrieved Party
The EEOC may bring a civil action if it fails to secure a conciliation agreement within 30 days of either the charge being filed with EEOC or the 60 day state deferral period expiring. If the EEOC dismisses a charge filed with it, or if the EEOC fails to file a civil action within 180 days of exclusive jurisdiction, then the EEOC must so notify the person aggrieved. Alternatively, when EEOC conciliation efforts extend past the 180 days of exclusive EEOC jurisdiction, the aggrieved person need not await the outcome of conciliation but may instead request a "notice-of-right-to-sue." In either circumstance, the aggrieved person may then bring a civil action on his own behalf within 90 days of receipt of such notice. Should the aggrieved person allow the EEOC to continue its conciliation efforts past the exclusive jurisdiction period, he may file suit if the final EEOC resolution is adverse to him, even if the conciliation takes years to complete.
In the case where the aggrieved person is a state or local government employee and the Commission fails to secure a conciliation agreement, it must refer the case to the Attorney General. The person aggrieved has a right to intervene in a civil action brought by the Commission or the Attorney General. The charging party may bring suit on his behalf subject to the same limitations above. After suit is filed, the EEOC is precluded from filing an independent action.
In summary, Title VII first requires that the charge be filed with the deferral agency if within a deferral jurisdiction, or directly with the EEOC if not. In deferral jurisdictions, filing with the deferral agency must be followed by timely filing the charge with the EEOC. The time periods are measured from the date that the discriminatory act occurred. Upon filing of the charge there is a 180 day mandatory waiting period, during which time the EEOC is given the opportunity to mediate and resolve the complaint. The private litigant then has 90 days in which to file suit. This limitation period runs not from the discriminatory act, but from the date the private party receives notice from the EEOC because either conciliation was completed or the pary requested a right to sue letter.
C. Title VII Procedures: Federal Defendants
Title VII requires federal defendants to use significantly different procedures. Within the federal government the employing agency is the primary administrator for Title VII. Claims are filed with Equal Employment Opportunity Counselors within the offending agency, not with the EEOC. Before a formal claim is filed, the aggrieved person must file a "pre-complaint" notice with a counselor within 45 days of the discriminatory act. The counselor must attempt to resolve the dispute within 30 days. At the end of the dispute resolution period, a final interview is conducted with the aggrieved party. If the matter has not been resolved, written notice is given to the aggrieved party. Formal charges may then be filed with "appropriate agency officials" within 15 days of receipt of that notice. The agency then has 180 days from filing to resolve the complaint; at the end of this period, the complainant may either request a hearing before an administrative law judge or accept a final agency disposition without further hearings.
The aggrieved party need not wait for the administrative procedures to run their full course. A civil action in federal district court may be commenced when 180 days have elapsed since the filing of the formal complaint. If the agency has made a determination on the formal charge, the aggrieved party may file suit within 90 days of receipt of the "decision letter."
Alternatively, the agency's final decision or dismissal of the complaint may be appealed to the EEOC within 30 days of receiving the decision letter. As of 1997, there is no set time period limiting the length of appellate review by the EEOC. Once EEOC issues a final decision on the appeal, the aggrieved party has 90 days from receipt of the final decision to file a civil action.
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