To File (Again) or Not to File (Again): The Post-Morgan Circuit Split Over the Duty to File an Amended or Second EEOC Charge for Claims of Post-Charge Employer Retaliation
76 Pages Posted: 30 Apr 2014
Date Written: February 1, 2014
Prior to filing a Title VII lawsuit, a plaintiff must exhaust her administrative remedies. This exhaustion requirement includes filing a charge with the Equal Employment Opportunity Commission (EEOC), receiving a right-to-sue notice, and filing suit within ninety days of receiving that notice. Most relevant to this Article, however, is the rule that the lawsuit the plaintiff files typically must raise only the issues raised in her EEOC charge.
There are, however, some exceptions to the rule regarding the lawsuit’s scope. This Article’s focus involves the exception for claims involving post-charge retaliation; specifically, most courts do not require a plaintiff to file an amended or second EEOC charge if her employer engages in retaliation because the plaintiff filed her initial EEOC charge. While this exception was widely recognized prior to the Supreme Court’s decision in National Railroad Passenger Corporation v. Morgan, after Morgan, some courts started requiring plaintiffs to amend their original charges or file additional charges, alleging retaliation. Most courts do not require this, but cases from the Eighth Circuit, the Tenth Circuit, and possibly the Fifth Circuit have created questions regarding whether a plaintiff must now jump over this additional hurdle. While the plaintiff from the Eighth Circuit case asked the Supreme Court to answer this question, the parties eventually settled. The plaintiff from the Fifth Circuit case also asked the Court to answer a similar question, but the Court denied certiorari.
This Article will first address Title VII’s administrative exhaustion requirement and the "retaliation exception" to it. Next, the Article will focus on pre-Morgan cases in which the courts applied the retaliation exception. The Article will then focus on Morgan, which has caused some courts to eliminate the retaliation exception. The Article will then discuss the post-Morgan circuit split. Finally, the Article will set forth options courts have when deciding this issue and will suggest one option that balances the goals behind Title VII's administrative exhaustion requirement with an employee’s need for a fair resolution of her claim. Although the proposed solution is not perfect, it does address the concerns many courts have raised when confronted with this important issue.
Keywords: EEOC, Equal Employment Opportunity Commission, administrative law, employer retaliation
JEL Classification: K10, K31, K40, K41
Suggested Citation: Suggested Citation