Getting an ADEA claim to court can be tricky. What are the administrative requirements? When does the charge-filing period expire? Where should the charge be filed? What are the necessary elements of a properly-pleaded ADEA complaint?
Age Discrimination Litigation takes the guesswork out of filing suit under the ADEA. Here are 8 tips you can start using today:
1. File with both the EEOC and your state FEPA. In most instances, the safest strategy is to file a charge simultaneously with the EEOC and your state or local FEPA. This will preserve your client’s rights under both state and federal law. The agencies will decide which of them will process the charge.
2. Filing a late charge is preferable to not filing at all. Given (a) the possibility of a court permitting the tolling of the charge-filing period, and (b) the fact that EEOC regulations require the agency to accept charges, even if they may be untimely, it is always wiser to advise a client or potential client to file a belated charge, rather than not to file one at all.
3. Win your tolling argument. The key to a successful tolling argument is to demonstrate that your client was unaware of her rights and the filing requirements during the filing period, and that she acted reasonably in remaining ignorant. Probe your client’s knowledge of her rights and the legal requirements; why she remained uninformed; and what ultimately led her to file the charge.
4. If you draft the charge for your client. Structure the charge for your client using this proven format:
ISSUE: State the adverse action alleged.
BASIS: State that the action was based on age, and identify the charging party’s age at the time of the adverse action.
State the date of the adverse action.
Identify (by name, job title, and relevant category) the individual who communicated each reason to charging party.
State how the charging party was qualified for the position or was performing satisfactorily in the position.
State how the charging party was treated differently from similarly situated individuals who are younger. Identify those individuals by name, title, and relevant category.
Request action by the EEOC, in the charge as well as any attached documents.
5. Get it date-stamped. EEOC offices sometimes redraft charges received in the form of a letter onto EEOC Form 5, even if the letter was drafted by an attorney. Insist that the EEOC date-stamp and return a copy of the letter that initially qualifies as the charge, and that the date on the letter be used as the charge-filing date. Verify that the Form 5 contains all of the information you provided in your earlier written communication and that the information is accurate.
6. Do not delay filing your ADEA court complaint. Defendants jump at the chance to dismiss based on timeliness and will use error-ridden decisions, like Kerr v. McDonald’s Corp., 427 F.3d 947 (11th Cir. 2005), to support their arguments. Advise your client to keep copies of all envelopes, as well as their contents, from all communications with the EEOC or the state FEPA. If you represent the client during the administrative procedure, insist that the EEOC send all correspondence to you.
7. Consider intervention in EEOC suit. An EEOC suit may preclude an individual’s suit, but it does not preclude intervention. Consider intervening when the EEOC is particularly interested in the suit for public policy reasons and is less concerned with monetary damages for your client. If the court accepts your motion to intervene, determine the scope of work and responsibilities of your firm and the EEOC, and put it in writing. Have an agreement as to which lawyer makes final decisions about strategy, discovery, witnesses, etc. This will be particularly helpful when you win and seek fees, and need to present a clear picture of your efforts on behalf of your client.
8. Get the EEOC to investigate. Even if you are not going to see the federal administrative law process through to the end, it is often useful to get the agency to conduct its own investigation. The results of this investigation could help you decide whether the case is worthy of federal court risk and, if you do decide to file in federal court, this investigative work will have been done for you.
Cathy Ventrell-Monsees has litigated ADEA cases for most of her career, including several ADEA class actions. She has written more than 50 amicus briefs in the U.S. Supreme Court and circuit courts. She is currently a Senior Attorney Advisor to Chair Jacqueline Berrien, after previously serving as an advisor to Commissioner Stuart Ishimaru at the Equal Employment Opportunity Commission.
L. Steven Platt has litigated ADEA cases for 35 years. He has tried over 100 cases to verdict in federal district courts and state courts and has handled cases, appeals and amicus briefs in jurisdictions ranging from California to New York. Mr. Platt is currently a Member of the Chicago, Illinois office of the law firm of Clark Hill PLC.