An employee alleging a violation of Title VII has 300 days to file a charge with the Equal Employment Opportunity Commission (EEOC) after the alleged unlawful practice occurred. Failure to do so could result in dismissal of the lawsuit. However, as a recent decision notes, an employer’s failure to comply with the EEOC’s posting requirements can preclude dismissal.

In a recent First Circuit case (in which Maine is located), Mercado v. Ritz Carlton, an employer defended a discrimination claim filed by several employees with a motion to dismiss the claims on the basis that they were not filed in a timely manner. Specifically, the employer alleged the Title VII claims were not timely because they were beyond the 300 day deadline.

The employees responded that the deadline was “tolled”, or did not begin to run, because the employer had not complied with the EEOC regulation that requires employers to post notices advising employees of their legal rights relating to employment discrimination. Therefore, the employees claimed that the theory of “equitable tolling” applied; specifically, they claimed that their 300 day deadline could not begin to run until they received notice of their rights. Since they alleged the employer had not posted the notices required by the EEOC, they claimed the limitations period should be “tolled” until they met with an attorney and were advised of their rights.

The district court rejected this argument on the basis that the equitable tolling doctrine may be utilized only when there is “active misleading” by the employer. That court held that a failure to post the mandatory notices was insufficient to satisfy that standard.

The First Circuit disagreed. In determining whether to allow equitable tolling in a particular case, the Court noted that the employee must lack actual or constructive knowledge of the Title VII filing requirement. Actual knowledge does not mean a specific awareness of the 300-day filing deadline; instead, it refers to the point at which an employee becomes generally aware that he possesses a legal right to be free from the discrimination alleged. Constructive knowledge would be presumed if the employer had posted the proper EEOC notices in conspicuous locations or when an employee has retained an attorney. In discussing these standards, the Court noted that ignorance in the context of equitable tolling means ignorance of the unlawfulness of the employer’s conduct; it does not protect an employee who is aware of his civil rights but is ignorant of certain provisions of the laws protecting those rights, including filing deadlines.

It is important to note that in the context of this motion to dismiss, the Court did not make any decision about the merits of the employee’s claims or whether the proper notice had been supplied. The employer alleged it had posted the requisite notices and that the employees had notice in other forms as well, such as through the nondiscrimination provision in the handbook (but the Court also pointed out that in order for handbook language to provide adequate notice, it had to do more than simply advise about company policy against harassment; it would have had to make reference to the availability of legal redress for such alleged violations).

In the end, because the employer had not posted the notices required by the EEOC and the employees alleged they had no knowledge of their legal rights until they met with their lawyer, the Court declined to dismiss their lawsuits. This outcome may well have been avoided and the suits may have been dismissed had the employer complied with the posting requirements.

The lesson from this decision is that employers should review their postings to ensure they have all of the mandatory notices. This is good practice not only because they are required by law, but also, as seen in this case, because having them may allow you to take advantage of certain defenses to those claims, particularly when they are not filed in a timely manner.

The State of Maine Department of Labor website has a listing of posters required under state and federal law and allows you to print copies of those posters at no charge. They are located at www.maine.gov/labor/bls/posters/. The EEOC’s mandatory poster referred to in this case can be found at that site.

This Newsletter is designed to provide information of a general nature only and is not intended to replace or provide professional legal advice.