Did You Verify Your EEOC Charge?

When an employee files an EEOC charge against his or her employer, there are always defenses raised by the employer, denying that discrimination took place. For example, in a promotion denial case, a defense may be that the employee was not qualified. In a termination case, the employer may say that the employee had engaged in misconduct or violated some company policy. Did you know that under emploiment law, technical deficiencies in your EEOC charge can also be a defense against a discrimination claim?

The Required Administrative Process for Discrimination Claims

The majority of employment discrimination claims are brought under the federal statute known as Title VII. This statute prohibits employers from discriminating on the basis of race, color, national origin, sex or religion. In order to bring a claim under Title VII, you are required to submit a "Charge of Discrimination" to the EEOC. This must be done before you can file a civil lawsuit in federal court.

The EEOC charge must be submitted "in writing, under oath or affirmation." This is known as verifying your EEOC charge, and it is required under the EEOC regulations. The verification is simply swearing under penalty of perjury or affirming before a notary public, an EEOC representative or other person authorized to administer oaths. But what happens if the you do not verify your EEOC charge prior to filing a lawsuit? What are the consequences?

Consequences of Failing to Verify an EEOC Charge Before Filing Suit

The EEOC process is an administrative requirement. Although you must engage in this process before you can go to court with your discrimination claims, not every deficiency in the administrative process renders you unable to bring your claim. One of the most important factors is whether the requirement that was not met was a "jurisdictional" requirement or not. The verification requirement is not jurisdictional in nature, which means the failure to verify your EEOC charge does not render the court unable to consider your claims.

One of the reasons the lack of verification does not forfeit an employee's rights under Title VII is because, typically, non-lawyers are the ones initiating the Title VII process. Therefore, courts generally do not interpret procedural rules in a way that deprives an individual their right under the law.

Lack of Verification As a Defense to an EEOC Charge

Though lack of verification of an EEOC charge may not procedurally bar a lawsuit, it can be asserted as a defense to the Title VII-based claims. The purpose of verification is to protect employers from potentially frivolous claims or claims of which they received no notice. In other words, an employer is allowed to raise the employee's failure to satisfy the requirement as a defense.

Lack of Verification Is a Waivable Defense

An employer who is in court defending a Title VII claim can raise the failure to verify the EEOC charge as a defense, and ask the court to dismiss the case on that basis. However, this defense, like many other non-jurisdictional defenses, is waivable. That means if the employer does not raise this defect during the EEOC proceeding, they likely waive the requirement and the case will proceed in court.

Do you plan to file an EEOC claim under Title VII? Contact our attorneys at (205) 265-1880 to discuss your rights as an employee in Birmingham.

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