NOT all claims reQUIRE THE EEOC
Claims Not Subject to the EEOC Phase
FMLA Cases are Not Subject to the EEOC
Notably, we represent clients in certain cases, such as those under the Family and Medical Leave Act ("FMLA"), where we bring claims that are not subject to the EEOC phase. A claimant under the FMLA has no obligation to file an EEOC charge. However, our practice is to always file an EEOC charge if the client also has rights under claims that are subject to the EEOC.
For example, let's say you were diagnosed with PTSD after experiencing sexual harassment or discrimination at work, and you took medical leave on the advise of your doctor. In theory, this claimant could go ahead and file an FMLA lawsuit. However, the claimant could not file a sexual harassment lawsuit under Title VII of the Civil Rights Act of 1964 ("Title VII") without first exhausting the "administrative remedies" in the EEOC.
In another example, let's say you suffered a workplace injury and had to have surgery and required rest for an extended period of time. Well, this individual would have claims under the FMLA, but also would have claims under the Americans with Disabilities Act ("ADA"). This can preclude you from bringing any rights at all because sometimes your employer may not meet the requirements under the FMLA that can be easily overlooked by a lawyer who is not detailed oriented. The example above regarding the PTSD claimant would also have an ADA claim if the employer failed to grant reasonable accommodation request from the individual.
The best practice if you have an FMLA claim is to file an EEOC Charge with the associated claim falling under Title VII or the ADA.
As an aside, a red flag when hiring a lawyer would include filing a lawsuit under the FMLA without filing an EEOC Charge if the slightest possibility exists that the client could also have a claim under under Title II or the ADA. This is a huge mistake because the FMLA has a four year statute of limitations period while claims under Title VII and the FMLA must be filed within 300 days of the last discriminatory action.
The only time a claimant should file an FMLA claim without filing an associated claim would be, of course, when the claimant does not have an associated claim. This is quite rare. One exception would be in a paternity leave retaliation case. For instance, a father who requests paternity leave is protected under the FMLA. If the employer thereafter either takes or threatens to take an adverse action, such as reducing the father's hours or terminating his employment before, during, or after he takes FMLA, a violation arises. In this scenario, however, the father would not have a related claim under Title VII or the FMLA.
