Employers defending untimely complaints of discrimination filed with the Missouri Commission on Human Rights must take certain steps at the agency level to raise the timeliness issue – otherwise, it is waived, according to a recent decision from the state Supreme Court.
The decision, in Farrow v. St. Francis Medical Center, is bound to make life difficult for employers defending MCHR complaints – especially because MCHR complaints are normally dual-filed with the Equal Employment Opportunity Commission, and it's often the EEOC that conducts the investigation when an EEOC charge and MCHR complaint are filed at the same time.
Missouri employees who believe they have been discriminated against must file an administrative complaint with the MCHR before they can bring a lawsuit against an employer under the Missouri Human Rights Act. The MCHR complaint must be filed within 180 days of the date of the alleged discriminatory act.
Meanwhile, under federal law, an employee who is discriminated against has either 180 days or 300 days to file a charge with the EEOC. If the employee is in a state (such as Missouri) that has its own human rights agency (such as the MCHR), then the 300-day deadline applies to the EEOC charge.
In other words, there are two different deadlines: 180 days to file an MCHR complaint, and 300 days to file an EEOC charge.
So what happens when an employee dual-files a charge with the EEOC within the 300-day deadline and a complaint with the MCHR that is outside the 180-day deadline? And what if the EEOC handles the investigation of the dual-filed proceedings? According to the Farrow court, the MCHR complaint will be considered timely unless the employer raised the timeliness issue with the MCHR.
The plaintiff in Farrow alleged that she was sexually harassed and retaliated against, and ultimately terminated on December 10, 2008. She filed her MCHR complaint on July 27, 2009, after the expiration of the MCHR complaint-filing period, and her EEOC charge several days later, before the expiration of the EEOC charge-filing period. After the EEOC investigated and issued her a Notice of Right to Sue, the MCHR also issued a right-to-sue letter based solely on the EEOC dismissal. Ms. Farrow then sued the Medical Center and the alleged harasser in state court, alleging (among other things) violation of the MHRA. The defendants moved to dismiss the MHRA claims based in part on the fact that Ms. Farrow's MCHR complaint was untimely. The circuit court granted summary judgment to the defendants, and an appeals court affirmed. However, the Supreme Court took a decidedly different view of the case.
Untimeliness Defense Was Waived
According to the state Supreme Court, the defendants lost their ability to challenge the timeliness of Ms. Farrow's MCHR complaint because they (1) failed to raise the timeliness issue while the complaint was pending before the MCHR; and (2) failed to seek judicial review by petitioning for a "writ of mandamus" with the court within 30 days of the MCHR's issuance of the notice of rights.
And this was so even though there was no indication that the MCHR had ever asked the defendants to respond to the administrative complaint, or investigated it, or issued the notice of rights based on its own independent findings.
The Court's decision in Farrow drastically alters the way Missouri employers must deal with untimely MCHR complaints. And, if an employer fails to take the proper steps to protect itself, the consequences can be significant – to put it bluntly, no employer wants to be a defendant in an MHRA claim in state court. Here are two key points to consider in terms of the practical impact of the decision:
Better to be safe than sorry. Although the Court faulted the defendants for not raising the timeliness issue through either of the two methods described above, it did not make clear whether an employer is required to do one or the other, or both. Presumably, this issue will need to be settled in future cases. In the meantime, a cautious employer in most circumstances will want to preserve the timeliness argument under both methods: a properly made objection while the complaint is pending at the MCHR, and the filing of a petition for writ of mandamus within 30 days of the issuance of the right to sue notice.
Make a timeliness determination as early as possible, and do it well. TheFarrow decision raises the stakes for employers who typically handle the administrative complaint process without the aid of counsel. Often, whether an employee's complaint is timely under the 180-day time frame is not clear-cut, and requires careful analysis of the conduct of the employer's decisionmakers, the dates that certain decisions were communicated to the employee, and whether the employee can string together timely and untimely events as a "continuing violation" of the MHRA. Even for companies that routinely handle the defense of administrative complaints in-house, it may be beneficial to have outside counsel conduct a "timeliness review" of an administrative complaint at the outset, to help ensure that the company's rights regarding a potentially late-filed complaint can be preserved.