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How do I file a disability discrimination claim?
Once an employee has suffered discrimination, determining where to turn can be an overwhelming task. Unfortunately, both federal laws and Missouri law place unique requirements on filing disability discrimination lawsuits. These include an administrative component and very condensed timelines for reporting discrimination. Below is a brief overview of how a disability discrimination claim begins.
Filing with EEOC and MCHR
Federal disability discrimination is controlled by the Americans with Disabilities Act or ADA. ADA claims are investigated and handled by the Equal Employment Opportunity Commission (EEOC), which is the same agency that handles race, religious, gender, and national origin discrimination claims. An employee (or his or her lawyer) files a Charge of Discrimination which outlines the employer and discriminatory actions that occurred. Unlike a lawsuit, this filing is free. The filing also does not have a technical form nor strict pleading requirements that are necessary in the filings for a civil lawsuit. Finally, a Charge of Discrimination is filed directly with the EEOC, not with a court.
The state counterpart to the EEOC is known as the Missouri Commission on Human Rights or MCHR. The Missouri Commission on Human Rights investigates violations of the Missouri Human Rights Act, which covers nearly all types of discrimination. The Human Rights Act covers discrimination prohibited by several federal counterpart laws, including the ADA (disabilities), Title VII of the Civil Rights Act (race, religion, gender, etc.), and the Age in Employment Discrimination Act (age). Like the EEOC, a Charge of Discrimination filed with the MCHR does not need to be technical, but only outline the discriminatory acts that occurred.
Who do I file with?
Missouri, along with Kansas and nearly every other state, is a “dual-filing” state. This simply means that the EEOC and MCHR have a workshare agreement. For an employee that is a victim of discrimination, this means there is no “wrong answer” to the question of where to file—filing with either the EEOC or MCHR is considered a dual-filing, automatically going to the other agency.
An aggrieved employee can file over the phone, via fax, by submitting a charge in person at a field office, or through legal counsel. However, as discussed later, it is important to not act too hastily. In fact, as the EEOC and MCHR staff are likely to indicate, discussing matters with an attorney before filing is the best course of action.
When should I file?
An employee must file a Charge of Discrimination within 180 days of an act of discrimination. This is generally when an employee is fired, but could include any adverse employment action, such as being denied a promotion, demoted, or being refuse a reasonable accommodation. If the employee fails to file within the 180-day time limit, not matter how egregious or good the discrimination claim was, that claim is lost forever. There are limited exceptions where certain adverse actions can “relate-back,” such as where an employee is denied a promotion, demoted to a less favorable shift, and then terminated. If these actions are shown to all be part of a larger plan of discrimination—a continuing action—there is a possibility the filing can reach back to collect these actions. However, the best plan for filing is to do so as soon after the adverse action as possible.
Do I still need a lawyer if I file with the EEOC?
Both the EEOC and MCHR have the power to investigate and prosecute claims of discrimination. However, budgetary restraints and the sheer volume of discrimination complaints make the likelihood of either agency pursuing a claim very minimal. Instead, the agencies largely depend on private prosecutions by individual victims of discrimination using private legal counsel. Most complaints filed with these agencies ultimately end up as lawsuits in courts.
After a Charge of Discrimination is filed, an employee must wait an additional 180 days until a Right to Sue letter can be requested. This document allows the employee to file a lawsuit in court. Once a lawsuit is filed, the employee gains several tools that simply aren’t available at the agency level. However, the Right to Sue document carries a very dangerous aspect—an employee must file with the court within only 90 days of receiving the document. Failure to file within 90 days bars the employee from filing a lawsuit at all. It is just as if the employee failed to file the Charge of Discrimination within 180 days of the discrimination.
One last detail is very important.
The Missouri Human Rights Act and ADA have some differences that should be noted. Generally, Missouri law—even after the recent pro-employer amendments of 2017—is much more favorable than the ADA. Thus, in almost every case, an employee will want to file under state law. They problem arises when the EEOC issues a Right to Sue before 180, which the EEOC—but not the MCHR—can do. This forces the hand of the MCHR and requires it to close the state investigation without any possibility of ever having a Right to Sue issued. Thus, an employee is force to file under the less-favorable ADA. The EEOC may issue a Right to Sue extremely quickly, particularly when an employee has not hired an attorney.
Discrimination claims carry an administrative component that is quite unique. Additionally, these claims have three time limitations that must be complied with and these time limitations are much shorter than most filing deadlines. Unlike civil lawsuits, an attorney who is hired after a Charge of Discrimination has been filed cannot generally undo any missteps that have occurred. This highlights how important contacting an attorney right a