Many employers are aware that, before filing a discrimination lawsuit in federal court, an employee must file a timely charge of discrimination with the Equal Employment Opportunity Commission.  The charge filing, which must occur within 180 days of the allegedly discriminatory act (or 300 days where there is a state agency with whom the charge can be co-filed), is an administrative prerequisite to bringing a lawsuit.  But employers can be subject to suit by the EEOC on the employee’s behalf, even where the employee has not filed a charge, as demonstrated in the case of EEOC v. Fry’s Electronics, Inc.

In this case, a female store employee was subjected to sexually harassing conduct (including sexual text messages, leering, and an instance of groping) by the Assistant Store Manager.  Despite her requests to stop, he continued the conduct.  The employee complained to her department supervisor and department manager.  The department supervisor reported her complaint to the corporate office.   The store manager, who was a close friend of the harasser, was directed to conduct an investigation.  The store manager did not take any notes of his interviews and did not complete an investigation report, although he had done so in other investigations.  The department supervisor was terminated within weeks of reporting the harassment and soon after his interview by the store manager.  The harassment of the female employee continued until she was terminated less than a year later.

The department supervisor filed an EEOC charge of discrimination, but the female employee did not.  In the course of its investigation into the supervisor’s charge, the EEOC determined that the female employee had also been subjected to retaliation, as well as sexually harassed.  It subsequently brought suit for violations of Title VII against the company on behalf of both the employee and the supervisor.  The company asked the federal district court to dismiss the claims asserted by the EEOC on behalf of the employee, because she had not met the administrative prerequisites for bringing a claim.  While the court agreed that she could not bring her own claims, it found that “the procedural limitations that apply to private claims do not necessarily apply to the [EEOC].”  The court held that the EEOC can bring suit on behalf of employees who did not file a charge if it discovers violations affecting those individuals during the course of a reasonable investigation into a valid charge.  The EEOC must then provide notice to the employer of the additional claim, determine that reasonable cause exists to support the additional claim, and attempt to resolve the claim with the employer prior to filing suit – all of which happened here.

So employers should be aware that the EEOC’s abilities to pursue litigation on behalf of employees is more extensive than the employee’s abilities to pursue their own rights.  EEOC litigation arising from a charge of discrimination filed by one employee may end up encompassing more than that one individual.