DH&F attorney Lori Torriero recently defended an employer against a discrimination charge, and wants to remind employers to watch the clock. The case involved a charge of discrimination filed against a County with the Equal Employment Opportunity Commission ("EEOC"). The case was dismissed as untimely.

A County employee was issued a 30-day suspension in 2006. The suspension was based, in part on the fact that she used County computers to send excessive and lengthy e-mails regarding her church activities during work hours. There were other infractions and instances of neglect of duty. The employee was notified on August 24, 2006 that she would serve a 30 day suspension. The last day of the suspension was served on October 6, 2006.

On August 7, 2007, the employee filed a charge with the EEOC alleging discrimination based on the exercise of her religious beliefs. Ohio is a "dual-filing state," meaning that an employee may file a charge with either the EEOC or the Ohio Civil Rights Commission ("OCRC"). In Ohio, an employee has 300 days from the date of the discrimination in which to file her charge.

The County argued that the employee's charge was untimely. Taking the earliest date, the date of notification of her suspension, the employee should have filed her charge by June 20, 2007. Even taking the last day of the suspension as the date of the event, the charge should have been filed by August 2, 2007. Because the employee did not file until August 7, 2007, the charge was dismissed as untimely.

The requirement to file within 300 days works to assist in speedy resolution of the claim while the evidence of whether discrimination occurred is fresh. Employers should never assume that a charge is timely filed without counting the days. Failure to raise the untimeliness of the charge can result in a waiver of that argument.