|Jottings By An Employer's Lawyer|
Thursday, February 09, 2006
EEOC Charges Down in Number
But see Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003) (finding that under Morgan, discrete acts that occurred after a charge is filed must be raised in a new charge, even if related to acts included in the pending charge); EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272 n.5 (11th Cir. 2002) (court stated that because the issue of post-charge discrimination had not been presented squarely, it would not address it, but noted that a charge may not encompass events that occur after it is filed because Title VII requires a charge to be filed after the unlawful employment practice occurred). The Commission disagrees with this view. Nothing in Morgan suggests that a new charge must be filed when a charge challenging related acts already exists. Thus, Morgan does not affect existing case law that permits subsequent related acts to be addressed in an ongoing proceeding.If they are wrong, then Potter should lead to more charges being filed not less.
A couple of other things that jumped out at me from the Commission's numbers -- 1 out 5 charges is for disability discrimination and 1 out of 3 allege retaliation, often in conjunction with some other substantive claim. Couple that last figure with the increasing number of retaliation claims brought under statutes outside the EEOC's purview and you begin to see how important retaliation is as a cause of action.