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Monday, January 9, 2012

FILING A CHARGE OF DISCRIMINATION IN PENNSYLVANIA - A FEW TIPS

Do I have to file a Charge of Discrimination with a state or federal agency before I can file a lawsuit in Pennsylvania?

Yes, you do. And, if you do not file one within a specified period of time, your rights to ever file a lawsuit will be lost forever.

If you believe that you have been subjected to a hostile work environment, have been a victim of sexual harassment, have been treated in an unlawful discriminatory fashion or have been subjected to illegal retaliation because you sought to protect your rights under statutes such as Title VII, the Age Discrimination in Employment Act or the Americans with Disabilities Act, then you must file a Charge of Discrimination with state and/or federal agencies before you can file a lawsuit in state or federal court.

In Pennsylvania, the state agency that you may file a Charge of Discrimination with is called the Pennsylvania Human Relations Commission (“PHRC”).


NOTE: Employees who work in the City of Philadelphia may also file a Charge of Discrimination with the Philadelphia Commission on Human Relations (“PCHR”). This Post does not focus on PCHR, instead dealing with PHRC and EEOC only.

Employees of larger companies (see below) also have the right to file a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), which is operated by the United States Government.

The relationship between the state and federal agencies identified above can be very complicated. For purposes of this Post, I want to talk about how your choice of where to file first can affect your right to later file suit in court.

Am I protected from illegal discrimination and retaliation under both state and federal laws?

Yes, depending upon the size of your employer. Federal law came first in the form of Title VII. State laws such as the Pennsylvania Human Relations Act (“PHRA”) then followed.

In many regards, Pennsylvania's state laws and federal laws such as Title VII are virtually identical. However, there are some very important distinctions.

For example, Title VII only protects employees that work for companies that have more than 15 employees. If you work for smaller company, say one that has 10 employees, you will be protected under Title VII.

Pennsylvania law, on the other hand, protects employees that work for companies that have more than 4 him employees. So, if you work for a company that has more than 4 but less than 15 employees, your only rights under discrimination laws are found under PHRA.

In addition, Title VII “caps” the amount of money that you can recover in a lawsuit. Stated otherwise, it limits the amount of money you to recover, no matter how much a jury awards to you. Pennsylvania law, on the other hand, contains no such “caps.”

Should I file a Charge of Discrimination under both state and federal laws?

Provided that the company in question has 15 or more employees, absolutely. In such instances, most people file a federal lawsuit under Title VII, and include state claims as well. In this way, a plaintiff may take advantage of the faster federal court system and broader geographic reach of the jury pool (and thus avoid being “hometowned” by a prominent local employer), while at the same time taking advantage of the PHRA’s more generous damage provisions (i.e. no “caps” on recovery).

How long do I have the file a Charge of Discrimination in Pennsylvania?

To preserve all of your rights under PHRA, you must file a Charge of Discrimination within 180 days of the act(s) you believe to be unlawful. Sometimes, that act may be a suspension, demotion or a failure to promote. In most cases, it will be the date you are terminated. Figuring out on what date your rights were first violated can sometimes be complicated, and you should seek counsel to discuss.

NOTE: Since terminations most frequently spark discrimination charges – let me make clear: Any employee that believes that his\her termination was illegal must file a Charge of Discrimination with the PHRC within 180 days of the termination or all rights under PHRA will be lost.

To preserve all of your rights under federal laws such as Title VII, you must file a Charge of Discrimination with the EEOC within 300 days of the act(s) you believe to be unlawful.

Do I file my Charge of Discrimination with the EEOC or with the Pennsylvania state agency, PHRC?

I almost always file with the EEOC first, and ask it to notify PHRC that I have filed a Charge, so that PHRC may docket the charge as well (provided I am doing so within 180 days of the illegal act(s) at issue – if more than 180 days have passed, I just file with EEOC). This is known as “dual filing."

I seldom file with PHRC first.

Why?

A person initially filing a Charge of Discrimination with the EEOC may, after the passage of 180 days, ask EEOC to issue a “Right to Sue” letter. With such “Right to Sue” letter in hand, the Charging Party may then file a suit in federal court without further delay. Thereafter, I advise PHRC that I have filed suit and it will close its case, so that I may add state law claims to my federal lawsuit.

A person initially filing a Charge of Discrimination with the PHRC, on the other hand, must wait at least one year before he\she may file suit under either state or federal law. So, if you file with PHRC first, that you cannot get a Right to Sue letter from EEOC until after at least one year has passed, even though if you had filed with EEOC first, you could have gotten Right to Sue letter after 6 months and proceeded to court.

Since, in most cases, the EEOC and PHRC have little opportunity to complete their investigation of Charges of Discrimination within a 12 month period of time, those with solid claims who wish to have their rights adjudicated in court in an expeditious fashion should file or Charge of Discrimination with EEOC, dual filing with PHRC, and proceed accordingly.

NOTE: If you do not have counsel, you may find that the PHRC will do more to investigate your claim, and you may want to file there first accordingly.

Questions About Pennsylvania Unemployment LawClick Here - we answer many of them!

Questions About Employment Laws? Click Here - we answer many of them!

The Author & Friends - Immediately After DJax Punt Return Giants Stadium 12/19/10
John A. Gallagher, Esquire, Philadelphia Area Employment Lawyer for Employees

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