Some guidance from 2d Circuit on EEOC exhaustion rules under Title VII

The filing deadlines under Title VII are shorter than most. In New York, you have 300 days from the last discriminatory act to file a charge of discrimination with the Equal Employment Opportunity Commission. There are some exceptions to this rule, particularly in hostile work environment cases, but the courts don't like extending these exceptions past the breaking point. This case provides a good example.

The case is Duplan v. City of New York, decided on April 30. Duplan worked in the City's Department of Health and Mental Hygiene. In July and August 2011, he filed a charge of discrimination with the EEOC, claiming he was denied a promotion for discriminatory reasons and then demoted in retaliation for complaining about that discrimination. He then got a right-to-sue letter from the EEOC in July 2012, which means the EEOC had wrapped up its investigation and Duplan could proceed in court with his lawsuit. But Duplan did not file a lawsuit in connection with that EEOC charge. Meanwhile, Duplan continued working for the City. Claiming to suffer additional discrimination following the 2011 complaint, he filed another EEOC charge in October 2014. Following the filing of the 2014 EEOC charge, plaintiff says, he suffered retaliation.

Here's the question: can plaintiff bring a lawsuit over the retaliation arising from the 2011 EEOC charge? Normally, if you bring an EEOC charge and then suffer retaliation because of that charge, you do not have to file additional EEOC charges arising from that retaliation. Instead, you can bring the lawsuit and assert the retaliation claim in court for the first time. The reason for this is that the post-EEOC complaint retaliation would surface anyway in the course of the EEOC investigation, and the courts don't think its efficient for the employee to continue to file EEOC charges, which then trigger a new investigatory period for the EEOC, which may last six months or longer, further delaying the lawsuit. As the Second Circuit says in this case:

In the paradigmatic case for which the “reasonably related” doctrine was adopted, retaliation occurs while the EEOC charge is still pending before the agency. It is well established that the plaintiff may then sue in federal court on both the adverse actions that gave the impetus for the initial EEOC charge and the retaliation that occurred thereafter, even though no separate or amended EEOC charge encompassing the subsequent retaliation was ever filed.

 . . .

[W]e have also applied the “reasonably related” doctrine to retaliation that occurs after the EEOC investigation is complete, even though the rationale that the retaliation likely was or should have been encompassed by the EEOC investigation is not available in such cases.

These lenient administrative exhaustion rules do not help Duplan, however, because he did not proceed with a lawsuit arising from the 2011 EEOC charge, even after receiving the right-to-sue leter in 2012. That means he cannot bring the post-2011 charge retaliation into the lawsuit that arises from the 2014 EEOC charge. Here is how the Court of Appeals reasons it out:

No administrative or judicial proceeding is still pending, and the employee who suffers further discrimination or retaliation, like any other employee with a potential Title VII claims, therefore remains subject to that statute’s administrative exhaustion requirement. There is no reason to expand the judicially created waiver of the statutory exhaustion requirement to permit unexhausted retaliation claims to be held open indefinitely into the future, or litigated without going through a new administrative process, simply because, if the plaintiff had timely filed suit, policy considerations would have weighed in favor of waiving the exhaustion requirement so that the retaliation claim could have been joined with that hypothetical lawsuit.

Although we have not previously had occasion to make clear that “reasonably related” retaliation claims are excused from the exhaustion requirement only if they arise during the pendency of an EEOC investigation or a timely filed federal case, that outcome is consistent with Title VII’s statutory scheme and our existing case law.