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June 02, 2005
EEOC notice not posted might toll tardy filing
Two former employees filed EEOC charges late, but still might be able to sue under Title VII if the employer did not post EEOC notices.
Title VII says EEOC charges must be filed within 300 days of the alleged unlawful practice. Title VII also requires employers to post a notice approved by the EEOC. The employees clearly filed after the 300 day period. However, the employees claimed the employer did not post the notice.
The 300 day filing period is subject to equitable tolling. The trial court thought that tolling takes place only when the employee is "actively misled" by the employer. Not so, said the 1st Circuit. Mercado v. The Ritz-Carlton (1st Cir 05/31/2005).
"An employer's violation of the EEOC posting requirement may provide a second basis for an extended filing period 'where the employee had no other actual or constructive knowledge of [the] complaint procedures.'"
The court listed a bunch of factual questions that the trial court will have to sort out: Did the employees have actual knowledge of their Title VII rights? Did they have constructive knowledge? Did the employer in fact post the notice? Did the employee handbook provide notice? Why did the employees wait 10 months to see a lawyer? Although the employees saw a lawyer before the 300 days ran (one day and ten days, respectively), why were EEOC charges not filed until 33 days later? Was the employer prejudiced by the delay? And when, exactly, did the 300 day period begin?
My view: (1) Employers should post the EEOC notices. (2) Employees should file with the EEOC in a timely manner.
From another blog: Michael Fox's Jottings By An Employer's Lawyer [here].
Posted June 02, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
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