MALPRACTICE TRAPSAND PRACTICE BEFORE THE EEOC

MICHAEL D. MCQUEENKEMP SMITHA PROFESSIONAL CORPORATION221 North Kansas, Suite 1700El Paso, Texas 79901915.533.4424915.546.5360 (Fax)mmcqueen@kempsmith.comwww.kempsmith.com

ADVANCED EMPLOYMENT LAW COURSEDallas, TXDecember 9-10, 1999Houston, TXJanuary 27-28, 2000

I

MICHAEL D. MCQUEENKemp Smith, P.C.1900 Norwest PlazaEl Paso, TX 79901(915) 533-4424(915) 546-5360 (FAX)

BIOGRAPHICAL INFORMATION

Mike McQueen is a graduate of Southern Methodist University and the University ofTexas School of Law and has been with Kemp, Smith, Duncan & Hammond, P.C. for over 20years. He is Board Certified in Labor and Employment Law by the Texas Board of LegalSpecialization. His practice primarily consists of defending employers in employment-relatedlitigation. Mike has represented clients before the state and federal courts in Texas, the FederalDistrict Court in New Mexico, and various federal and administrative agencies in El Paso, SantaFe and the Southwest region. He has been a guest lecturer at the University of Texas at El PasoCenter for Professional Development and has spoken on employment and other legal topics beforenumerous audiences throughout the Southwest. He is a member of the Executive Council of theState Bar of Texas Labor and Employment Law Section and has been a speaker at the State Barof Texas Advanced Civil Trial and Advanced Employment Law Courses. Mike was namedOutstanding Young Lawyer of El Paso in 1983 and has been listed in the Best Lawyers inAmerica. He is on the board of directors of the El Paso Country Club and serves on the SteeringCommittee of El Paso Citizens Against Lawsuit Abuse.MALPRACTICE TRAPS AND PRACTICE I- TABLE OF CONTENTS

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I. INTRODUCTION 1

II. CONTENTS OF THE CHARGE 1A. Nuts and Bolts: Formal Elements of the Charge 1B. Exceptions to the Verification Requirement 21. Unverified Documents That Can Constitute a Charge 22. Unverified Documents That Do Not Constitute a Charge 2

III. THE SCOPE OF THE CHARGE AS LIMITING THE SCOPE OF THE LAWSUIT: THE RELATION BACK DOCTRINE 3A. Sanchez v. Standard Brands, Inc. 3B. Applying Sanchez and "Like or Related" 41. Suit Alleging Different Issues But the Same Basis of Discrimination 42. Suit Alleging a Different Basis of Discrimination From the Original Charge 5

IV. STANDING TO FILE A CHARGE/SUIT 6

A. "Aggrieved Individuals" 6B. Undocumented Aliens 6C. Independent Contractors/ Non-Employees 7D. Former Employees 7E. White Persons Claiming Discrimination Against Minorities 8F. EEOC & Commissioner Charges 8

V. PROPER RESPONDENTS 9A. Employers 91. Employment Relationship? 92. "Employees" 93. Counting "Employees" 104. Who is the "Employer" 11a. "Single Employer" Theory 11b. "Joint-Employer" Theory 11c. Agent Liability 12d. Third Parties & "Sibley Standing" 12B. Unions 13C. Employment Agencies 13D. International Issues 131. Americans Employed in Foreign Countries 132. Aliens Employed Outside the United States 143. Foreign Employers Operating in the United States 144. Extraterritorial Activities of Foreign Employers 14

VI. WHERE TO FILE A CHARGE 14A. FEP Agency Filing 151. When Mandatory 152. Deferral Issues 15

a. 60-day Time Period 15b. State Waiver of Deferral & Worksharing Agreements 15B. EEOC Filing 15

VII. WHEN TO FILE A CHARGE 15A. 180-Day Filing Period 15B. 300-day Filing Period; Texas 15C. Equitable Tolling 16D. Triggering the 180/300 Day Period 171. Individual Acts 172. Continuing Violations 17E. Notice to Employer/Respondent 17

VIII. RIGHT TO SUE NOTICE 17A. Failure to Exhaust Administrative Prerequisites 17B. Federal Law 17C. TCHRA 18

IX. WHEN TO FILE THE LAWSUIT 18A. Federal Law: 90-Day Rule 18B. TCHRA: 60-Day Rule 18C. Triggering the 60/90-Day Rule 181. Federal Law 18a. What Constitutes a "Notice"? 19b. When is "Notice" Given? 19c. Tolling, Laches, and Related Issues 192. TCHRA Claims 20D. What Constitutes "Filing" 21

APPENDIX

MALPRACTICE TRAPS AND PRACTICE I- I- MALPRACTICE TRAPS AND PRACTICE

MALPRACTICE TRAPS AND PRACTICE BEFORE THE EEOC

. INTRODUCTION

Perhaps nothing can be as frustrating as the procedural hurdles an attorney faces whenattempting to prosecute an employment discrimination case. No matter how egregious thediscrimination and no matter how solid the facts maybe, the failure to follow the myriad ofprocedural steps that both federal and state law mandates can not only prematurely end a lawsuit,but also subject an attorney to a legal malpractice claim. To that end, this paper is intended toserve as a general road map through the EEOC charging process. It explores issues ranging fromwhat must be included in the charge to the time periods that can easily lead a seasonedpractitioner down the legal malpractice road.[1]

. CONTENTS OF THE CHARGE

When analyzing the charging process, the first issue to be considered is what should beincluded in the charge itself. At this stage of the process, an attorney is often not involved. Thefactual allegations which are included in the charge, however, set the parameters for the lawsuitwhich will ultimately take place.

. Nuts and Bolts: Formal Elements of the ChargeAn individual ("charging party") who considers himself or herself to be the victim of

unlawful employment discrimination must file a charge of employment discrimination with theEqual Employment Opportunity Commission ("EEOC") in order to preserve his or her right tobring a civil action against the employer ("respondent"). 42 U.S.C.A. § 2000e-5 (f) (1) (1994).[2] The charge must be in writing and be verified, and "contain such information and be in such formas the Commission requires." 42 U.S.C.A. § 2000e-5; 29 C.F.R. § 1601.9. The EEOC in turnrequires that the charge contain the full name, address, and telephone number of the personmaking the charge and the person against whom the charge is brought. 29 C.F.R. § 1601.12(a)(1), (2). A person filing a charge on behalf of another person need not provide their addressand telephone number. Id. The EEOC also requires a clear and concise statement of the factsthat gave rise to the alleged unlawful employment practice, including pertinent dates, to beincluded in the charge. 29 C.F.R. § 1601.12 (a)(3). Finally, the EEOC requires that the chargecontain the approximate number of employees employed by the respondent and a statement as towhether any State or local proceedings have been commenced prior to the filing of the charge. 29C.F.R. § 1601.12 (a)(4), (5).

Despite these formal requirements, the EEOC considers a charge sufficient if it receives awritten statement precise enough to identify the parties, and to describe the action or practicescomplained of. 29 C.F.R. § 1601.12 (b). Furthermore, EEOC regulations allow a charge to be

amended to cure any technical defects or omissions, including a failure to verify the charge or toclarify the allegations made in the original charge. Id. If an amendment to the charge allegesadditional unlawful employment acts related to or growing out of the subject matter of theoriginal charge, those additional claims will relate back to the date the charge was first received. Id. See § II-C, infra.

. Exceptions to the Verification RequirementEEOC regulations which require a charge to be verified in order to be perfected have

resulted in considerable litigation and confusion over exactly when an unverified charge will beconsidered perfected.[3] While the Fifth Circuit takes a more liberal approach to verification, it isnot a foregone conclusion that an unverified document will be considered a charge.

. Unverified Documents That Can Constitute a ChargeAlthough some courts, most notably the Fourth Circuit, rigidly adhere to the EEOC's

verification requirement, see EEOC v. Appalachian Power Co., 568 F.2d 354, 355 (4th Cir. 1978)(upholding district court's observation that "the language of the statute is plain and unambiguous,"and to ignore that language would "be tantamount to ignoring congressional language"), mostcourts apply a much more lenient standard to the requirement. The Fifth Circuit is representativeof a number of courts which take a remedial approach to the EEOC requirement that a chargemust be verified. In fact, the Fifth Circuit has long recognized that a complaint which is neithersworn nor signed may be later amended to constitute a perfected charge. Price v. SouthwesternBell Tel Co., 687 F.2d 74, 77-78 (5th Cir. 1982); Weeks v. Southern Bell Tel. & Tel. Co., 408F.2d 228, 231 (5th Cir. 1969).

In Weeks, the court noted that a rigid application of EEOC rules requiring verificationwould serve only to defeat the purposes of Title VII, namely to eradicate employmentdiscrimination. Rather than utilizing a hard and fast interpretation of the rules, the court believedthat "[i]t is in keeping with the purposes of the Act to keep the procedures for initiating actionsimple. . . . All that is required is that [the charge] give sufficient information to enable EEOC tosee what the grievance is all about." Weeks, 408 F.2d at 231 (quoting Jenkins v. United GasCorp., 400 F.2d 28, 30 n. 3 (5th Cir. 1968)). The court's holding can be attributed to its view thatEEOC charges are often "prepared by laymen untutored in the rules of pleading" which leads theFifth Circuit to construe them "with the utmost liberality." Price, 687 F.2d at 78. See alsoStanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 559 (Tex. App. - Corpus Christi 1995, writdenied) (unverified letter sufficient to constitute a charge).

. Unverified Documents That Do Not Constitute a ChargeDespite the lenience with which the Fifth Circuit views unverified charges, it will not

simply rubber stamp each and every unverified document that is asserted to be a charge. Instead,the court recognizes that a complete and accurate charge should be filed to provide the EEOCwith an adequate factual basis for initiating the investigatory process. Price, 687 F.2d at 78. Thus, the court considers two factors all important when dealing with an unverified document. The first is whether, as a result of the facts contained in the unverified document, the EEOC's"administrative machinery" is set in motion. Id. In addition, the court considers whether theEEOC made a mistake in handling the unsworn complaint and whether it is the charging party's

fault that a formal charge was not filed. See McKee v. McDonnell Douglass Technical Serv. Co.,700 F.2d 260, 264 (5th Cir. 1983).

Such reasoning guided the court in Price v. Southwestern Bell Tel. Co., 687 F.2d 74, 77(1982), where the charging party completed an EEOC intake questionnaire[4] that informed theEEOC of the discrimination she allegedly suffered and the parties who were allegedly involved,but did not sign a verified charge. The questionnaire was neither signed nor verified. Price, 687F.2d at 78. On the basis of the facts stated in the questionnaire, the EEOC's "administrativemachinery" was set in motion. Id. After receiving a right to sue notice, the charging party filedsuit. Id. at 76. The respondent claimed the suit was barred because the charging party failed tofile a perfected charge with the EEOC within 180 days. Id. The Fifth Circuit disagreed. It notedthat "the fact that the Commissioner, at least at the initial stage of the proceedings, considered thecircumstances surrounding receipt of Price's complaint sufficient to initiate the administrativeprocess, is relevant to the determination of whether the interview by [the EEOC] and completionof Form 283 constitutes a 'charge.'" Id. In the end, the court held that the questionnaireconstituted a perfected charge based upon both the charging party's lack of legal sophisticationand the EEOC's action pursuant to the receiving the questionnaire. Id. See also Philbin v. Gen.Elec. Capital Auto Lease, Inc., 929 F.2d 321 (7th Cir. 1991) (non-verified intake questionnaireheld to be a charge where EEOC accepted the questionnaire and assigned a charge number to theclaim).

In Gonzales v. Hoechst Celanese Corp., 1997 WL 855968, *1 (S.D. Tex. 1997), thecharging party sent an unverified letter to the EEOC which stated she had been discriminatedagainst because of her national origin, age, and gender. The EEOC responded to the chargingparty with a letter requesting more information regarding her "inquiry" to them. Id. The EEOCspecifically notified the charging party that additional information was needed before the EEOCcould determine whether her allegations were covered under any applicable statutes. Id. Twomonths after the 300-day period to file a charge expired, the charging party finally filed a formalcharge. Id. at *2.

The district court refused to hold that the letter was a formal charge. Id. at 6. It appliedthe two part test and found no evidence that either 1) the EEOC in anyway acted on the letter or2) that the EEOC mishandled her claim. Id. The court ultimately found that to "allow such aletter in these circumstances to constitute a 'charge' would defeat the principal purpose ofrequiring a complete and accurate charge - namely, to allow the EEOC to begin investigating andseeking conciliation." Id.

. THE SCOPE OF THE CHARGE AS LIMITING THE SCOPE OF THE LAWSUIT: THE RELATION BACK DOCTRINE

Often, a charging party will file a charge with the EEOC that alleges only a single groundfor the respondent's liability. Then, in his lawsuit, the charging party will attempt to either 1) litigate issues beyond those specified in the charge (e.g., the charge complains only of dischargeand the later federal court complaint attacks both discharge and hiring practices); or 2) the

complaint may allege an additional basis for discrimination (e.g., the charge alleges only racediscrimination but the later complaint includes both race and gender discrimination). Whether acourt will allow the additional issue or basis in the complaint to be litigated is determined byapplying the "relation back" doctrine to the facts of the case.[5]

. Sanchez v. Standard Brands, Inc.The seminal opinion dealing with the relation back doctrine was handed down by the Fifth

Circuit in Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). In the case, thecharging party filed a timely EEOC charge which stated her supervisor hit her on her buttocks atwork. Sanchez, 431 F.2d at 458. The charging party marked the EEOC charge form to indicateshe had been discriminated against on the basis of her sex. Id. She later amended her complaintto give a fuller explanation of the incident and indicated she had been discriminated against on thebasis of both her sex and national origin. Id. The court held the amended complaint related backto the original claim because the facts alleged in the amended complaint, and upon which thecharges of sex and national origin discrimination were based, were nearly identical. Id.

The court took little stock in the respondent's argument that, because the charging partychecked only the "sex" box originally, she was limited to alleging that basis of discrimination inher lawsuit. Id. at 462. The court noted that her failure to check the "national origin" box was amere technical defect which the EEOC specifically contemplated could be cured by amendment. Id. It was concerned that accepting the respondent's view would create a harsh rule ill-suited tothe purposes of Title VII. Id. at 462- 63. Finally, the court held that merely elaborating on thefactual allegations in the original charge did not constitute new and additional allegations butsimply clarification of the original charge. Id. at 465.

As a result of Sanchez, an additional allegation of discrimination in a federal courtcomplaint will relate back to the original charge if the additional allegation is "like or related" toallegations contained in the original charge and grows out of the allegations contained therein. Id.at 466. "Like or related" is in turn defined by the Fifth Circuit to mean whether the additionalallegation, and subsequent EEOC investigation, could reasonably be expected to grow out of theoriginal charge. Gamble v. Birmingham S. R.R. Co., 514 F.2d 678, 688 (5th Cir. 1975). In otherwords, if the additional allegation "arises naturally and logically from the facts presented to theEEOC, it will be related to the original charge." Vuyanich v. Rep. Nat'l Bank, 409 F.Supp 1083,1089 (N.D. Tex. 1976).

. Applying Sanchez and "Like or Related"Sanchez and its progeny view the initial EEOC charge not as a blueprint for the ultimate

lawsuit but rather as the impetus for the EEOC investigation. Sanchez, 431 F.2d at 466 ("[a]charge of discrimination is not filed as a preliminary to a lawsuit.") Sanchez relies heavily on thenotion that charging parties are invariably laypersons who are frequently uneducated andinarticulate. Sanchez, 431 F.2d at 463. Those principles drive the analysis of the Fifth Circuit andmost other courts when dealing with the relation back doctrine and the following issues.

. Suit Alleging Different Issues But the Same Basis of DiscriminationGenerally, where a federal court complaint alleges the same basis for discrimination, but

alleges different or additional facts than those originally asserted in the charge, courts apply theSanchez "like or related" test to determine whether the additional allegations may be litigated. See Nat'l Ass'n. of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711(5th Cir. 1994). In Nat'l Ass'n, for instance, the plaintiffs filed a charge of discrimination againstthe City of San Antonio alleging national origin discrimination in its hiring practices in 1977. Nat'lAss'n, 40 F.3d at 702. Twelve years later, in 1989, the plaintiffs finally filed a class action lawsuitagainst the City for its discriminatory practices. Id. Both the district court and Fifth Circuit,however, refused to apply the relation back doctrine and instead dismissed the plaintiffs' claim forfailure to exhaust their administrative remedies. Id. at 712. The court noted that between thetime the original charge was filed in 1977 and the time the lawsuit was brought in 1989, the Cityinstituted significant changes in its hiring practices, including an affirmative action program andelimination of formal educational requirements for promotion to foreman or supervisor. Id. Thecourt held that the twelve year delay was not only inexcusable, but also caused the plaintiffs' claimto fail the "like or related" test of Sanchez because the discriminatory practices originallycomplained of in the charge no longer existed. Id. See also Anderson v. City of Dallas, 1996WL 511521, *4 (N.D. Tex. 1996) (charge of discriminatory hiring practices by the defendant filedin 1995 did not relate back to other alleged discriminatory acts in 1993 because 1995 charge didnot encompass or in anyway relate back to1993 hiring practices).

On the other hand, in Winegarner v. Dallas County Sch., 1999 WL 325028 (N.D. Tex.1999), the court held that additional acts of race discrimination not complained of in the plaintiff'soriginal charge related back to the original charge. Winegarner, 1999 WL 325028 at *2. Theplaintiff complained of racial discrimination in her charge, which was evidenced by 1)discriminatory policies and procedures; 2) refusing to permit the plaintiff to work certain jobs; and3) refusing the plaintiff the opportunity to drive on field trips. Id. In her lawsuit, she addedadditional allegations that she was accused of theft and repeatedly asked to take drug testsbecause of her race. Id. The court believed that the additional issues "could reasonably beencompassed within the scope of the charge." Id. Thus, the court allowed the additional issues torelate back to the original charge and to be included in her lawsuit. Id. See also Fellows v.Universal Restaurants, Inc., 701 F.2d 447, 451 (5th Cir 1983) (allegations in class action lawsuitwere sufficiently like and related to individual plaintiff's original charge of discrimination for class'allegations to relate back).

. Suit Alleging a Different Basis of Discrimination From the Original ChargeCourts also apply the "like or related" test to lawsuits which allege a different basis of

discrimination than that claimed in the original charge. Vuyanich v. Rep. Nat'l Bank, 409 F.Supp.1083, 1089 (N.D. Tex. 1976). In Vuyanich, the charging party, a black woman, filed an EEOCcharge alleging the respondent discharged her because of her race. Vuyanich, 409 F.Supp. at1085. Her original charge alleged that her supervisor told her immediately prior to beingdismissed that she did not need the job because her husband was white. Id. at 1089. Uponreceiving her right to sue notice, the charging party added a sex discrimination claim to herlawsuit. Id. at 1089. The court held, based upon Sanchez, that the sex discrimination claimshould relate back to the original charge of race discrimination because the sex discriminationclaim was clearly like or related to the race discrimination claim. Id. The court noted that thesupervisor's statement "clearly smacks of sexual as well as racial discrimination." Id. Further, it

believe that a "similar statement could not logically be made to a male." Id. Finally, the courtrefused to foreclose the charging party's sex discrimination claim due to the EEOC's inability to"appreciate the sexual implications of [the] statement." Id. See Fellows v. Universal Restaurants,Inc., 701 F.2d 447 (5th Cir. 1983), cert. denied, 464 U.S. 828 (1983) (sex discriminationallegations by female employee in original charge could support subsequent class action of allwomen because class action claims were "like or related" to original individual claim).

On the other hand, in Hornsby v. Conoco, Inc., 777 F.2d 243 (5th Cir. 1985), the courtrefused to apply the relation back doctrine to a sexual harassment claim that the charging partyattempted to add to her original charge of age discrimination. The charging party timely filed acharge of discrimination based upon age and retaliation. Hornsby, 777 F.2d at 245. In thecharge, she checked the 'other' box and wrote in "age and retaliation." Id. In explaining hercharge, she claimed that she told her supervisor that unless she was promoted, she would file asex discrimination claim. Id. More than seven months later, the charging party attempted toamend her charge and indicated that she had been discriminated against on the basis of her sex andher age. Id. To support her new claim, she alleged that her supervisor asked her if she could stillget pregnant and treated her coldly after she refused his advances. Id.

In refusing to apply the relation back doctrine to her sexual harassment claim, the courtnoted that the facts included in the original complaint made no reference to sexual harassment. Id. at 247. It viewed her amended charge not as elaborating on the original charge, but rather asadding "a new and independent charge, sexual harassment, and new and independent facts tosupport [the] claim." Id. The court distinguished Sanchez, noting that Sanchez stands for theproposition that a new charge will relate back only where it elaborates on the original charge. Seeid. Even construing the charging party's original charge as alleging age and sex discrimination,the new sexual harassment charge was based on completely new facts. Id. See also Reno v.Metro. Transit Auth., 977 F.Supp. 812, 818-819 (S.D. Tex. 1997) (original charge of sex, race,and age discrimination did not support sexual harassment claim).

. STANDING TO FILE A CHARGE/SUIT

Only certain persons are allowed to file a charge of discrimination with the EEOC. Mostoften, the charging party himself or herself will allege that he or she directly suffered an adverseemployment action and is thus an aggrieved individual. Such is not always the case, however.

. "Aggrieved Individuals"The express language of Title VII contemplates that any "person claiming to be aggrieved"

may file a charge of discrimination with the EEOC. 42 U.S.C.A. § 2000e-5 (b). Although theterm "aggrieved" is not defined in Title VII, courts generally apply traditional standing rules inorder to decide if a party comes within the meaning of Title VII. See, e.g., LULAC v. City ofGalveston, 942 F.Supp. 342 (S.D. Tex. 1996) (organization concerned with equality for Hispanicsdid not have standing to sue under Title VII where organization failed to allege injury by city). Ingeneral, a charging party must allege some type of harm as the result of the allegedly unlawfulemployment practice. See id. The most common class of aggrieved persons are employees and

unsuccessful job applicants. See Patton v. United Parcel Serv., Inc., 910 F.Supp. 1250, 1278(S.D. Tex. 1995) ("persons aggrieved" generally encompasses employees or applicants foremployment with the allegedly offending employer). The EEOC also includes in the class of"aggrieved individuals" employees who are retaliated against for refusing to discriminate or forpresenting evidence of discrimination and those subject to hostile work environments because ofpervasive discrimination. EEOC Policy Statement No. 917.002, Sept. 9, 1991. However, aperson is generally not considered an "aggrieved individual" if the respondent is neither thecomplainant's employer nor prospective employer. See EEOC v. Fawn Vendors, Inc., 965F.Supp. 909, 911 (S.D. Tex. 1996).

The TCHRA permits charges to be filed by "employees," who are defined simply as"individual[s] employed by an employer. . . ." Tex. Lab. Code § 21.002(7). Moreover, employersare prohibited from discriminating against "individuals," which is not defined by the TCHRA. SeeTex. Lab. Code § 21.051. Because a lack of case law exists regarding who may file a chargeunder the TCHRA, federal law interpreting Title VII is appropriate to use as guidance ininterpreting the TCHRA. NME Hosp. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999).

. Undocumented AliensThe EEOC recently issued new guidelines on the rights of undocumented aliens under

Title VII and other anti-discrimination statutes. Enforcement Guidance on Remedies Available toUndocumented Workers Under Federal Employment Discrimination Laws (October 22, 1999),http://www.eeoc.gov/docs/undoc.htm ("October 26 Guidelines"). These specifically provide thatundocumented aliens have standing to bring a charge under Title VII. See id. See also EEOC v.Hacienda Hotel, 881 F.2d 1504, 1517 (9th Cir. 1989) (Title VII protects undocumented workersdespite their illegal status). But see Egbuna v. Time Life Libraries, Inc., 153 F.3d 184 (4th Cir.1998), cert. denied, 119 S.Ct. 1034 (1999) (no Title VII cause of action for refusal to hireundocumented alien).

The real issue with regard to undocumented aliens, however, is the remedies they are ableto receive. Originally, undocumented aliens were thought to have no meaningful remedies underfederal employment statutes. See Policy Guidance: Effect of the Immigration NaturalizationReform & Control Act of 1986 ("IRCA") on Remedies Available to Undocumented Aliens UnderTitle VII (April 26, 1989), 3 EEOC Compl. Man (BNA) N:3255, superseded by Oct. 26Guidelines (remedies such as reinstatement or promotion may not be available to employees hiredin violation of IRCA); Cf. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 899-900 (1984)(undocumented alien may be charging party but relief may be limited under NLRA).

However, the new guidelines promulgated by the EEOC expressly provide thatundocumented aliens are entitled to all remedies available to U.S. citizens under Title VII. October 26 Guidelines. These remedies include reinstatement, back pay, injunctive relief, andattorneys' fees and costs among others. Id. See also A.P.R.A Fuel Oil Buyers Group, 320N.L.R.B. 408 (1995), aff'd, NLRB V. A.P.R.A. Fuel Oil Group, 134 F.3d 50 (2nd Cir. 1997)(undocumented aliens entitled to back pay under NLRA).

. Independent Contractors/ Non-EmployeesCourts have generally required an employer-employee relationship between the charging

party and respondent in order for the charging party to sue under Title VII. See Patton, 910F.Supp. 1250 at 1278 (Title VII charging parties generally include either employees or applicantsfor employment). They generally have held that independent contractors do not have standing tosue under Title VII. See, e.g. Alexander v. Rush North Shore Med. Ctr., 101 F.3d 487, 492 (7thCir. 1996), cert. denied, __ U.S. __, 118 S.Ct. 54 (1997) (physician who was an independentcontractor could not bring suit under Title VII).

In determining whether an individual is an independent contractor or an employee withstanding to file a charge under Title VII, the Fifth Circuit applies a "hybrid economicrealities/common law control test" that was first adopted in Mares v. Marsh, 777 F.2d 1066 (5thCir. 1985). The test looks at the "economic realities" of the work relationship as an importantfactor in the determination, but also focuses on the "extent of the employer's right to control the'means and manner' of the workers' performance." Mares, 777 F.2d at 1067 quoting Spirides v.Reinhardt, 613 F.2d 826, 831 (D.C. Cir. 1979). In Mares, the court held that a grocery bagger atan Army commissary who sued the Army for race, gender, and national origin discriminationunder Title VII was not an employee of the Army, but rather an independent contractor. Mares,777 F.2d at 1068. The court pointed out that the Army played no role in hiring baggers, firingthem, or exercising any supervision over them. Id. The extent of the Army's control over baggerswas to issue regulations concerning their dress and conduct. Id. The ability to issue regulations,however, was not enough to satisfy the court that the baggers were employees of the Army. Id. See also Thompson v. City of Austin, 979 S.W.2d 676, 684 (Tex. App. - Austin 1998, no writ)(applying hybrid test to determine employment status under TCHRA); Nowlin v. ResolutionTrust Corp., 33 F.3d 498, 505-07 (5th Cir. 1994) (citing Mares for proposition that hybrid testcontrols whether person is an employee or independent contractor); St. Germain v. SimmonsAirline, 930 F.Supp. 1144 (N.D. Tex 1996) (utilizing hybrid test to hold trainee in flight attendantschool was not airline's employee).

. Former EmployeesIt is generally accepted that a discharged employee has standing to file a charge of

discrimination for a violation of Title VII because 42 U.S.C.A. § 2000e-2 protects "anyindividual" against discrimination with respect to "compensation, terms, conditions,, or privilegesof employment" even though he no longer has an employment relationship with the employer. 42U.S.C.A. § 2000e-2; See, e.g., Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124(5th Cir. 1969) (discharged employees covered under 42 U.S.C.A. § 2000e-2). Until recently,however, there was a split in the circuit courts of appeal as to whether Title VII protects formeremployees who are retaliated against in violation of 42 U.S.C.A. § 2000e-3, which prohibitsretaliation only against an employer's "employees or applicants". 42 U.S.C.A. § 2000e-3;compare Reed v. Shephard, 939 F.2d 484, 492-93 (7th Cir. 1991) (in refusing to find standing forformer employee in retaliation claim, noting "Congress could certainly have also included a formeremployee if it had desired") with Charlton v. Paramus Bd. Educ., 25 F.3d 1994 (3rd Cir. 1994),cert. den. 513 US 1022, (1994) (public policy and remedial purposes of Title VII require formeremployees to be included under Title VII).

Former employees can be illegally retaliated against when their former employer providesa negative reference to prospective employers in retaliation for the employee's exercise of rightsunder Title VII. See, e.g., Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997), cert. denied, 506U.S. 1016 (1997) (Navy's dissemination of negative employment references violated Title VII'santi-retaliation provision).

The Supreme Court resolved the split in 1997, holding that former employees havestanding to file a charge under Title VII. Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). See also EEOC v. Cosmair Inc., 821 F.2d 1085 (5th Cir. 1987) (former employees have standingto challenge retaliation claim under ADEA).

. White Persons Claiming Discrimination Against MinoritiesIn several cases, white persons have claimed to be "aggrieved individuals" because of

discrimination against minority groups. In such cases, the EEOC takes the position that anyonecan file a charge of discrimination because anyone has standing to challenge discrimination. EEOC Dec. 71-969 (Dec. 24, 1970) (white employee personally aggrieved by racial insultsdirected at black co-workers). The Fifth Circuit has found standing for white persons on thetheory that discrimination injures white persons by depriving them of an environment unaffectedby discrimination, or of associational benefits. See EEOC v. T.I.M.E. - D.C. Freight, Inc., 659F.2d 690, 692-93 (5th Cir. 1981) (white truck drivers are "persons aggrieved" by discriminatorypractices against black truck drivers); EEOC v. Mississippi College, 626 F.2d 477, 483 (5th Cir.1980), cert. denied, 453 U.S. 912 (1981) (white plaintiff may raise claim of personal injury due todenial of racial contact with blacks; but could not raise claim on behalf of blacks).

. EEOC & Commissioner ChargesThe EEOC itself has authority under Title VII to file a charge of discrimination. 42

U.S.C.A. § 2000e-5 (b); 29 C.F.R. § 1601.11 (a) ("[a]ny member of the Commission may file acharge with the Commission.").[6] There are two situations when the EEOC may file a charge. First, when a victim of discrimination is reluctant to file a charge for fear of retaliation by theemployer. EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1984); 42 U.S.C.A. § 2000e-5 (b). Second,the EEOC may file a charge on its own initiative when it has reason to believe that an employerhas engaged in a "pattern or practice" of discriminatory conduct. Shell Oil Co., 466 U.S. at 62;42 U.S.C.A. § 2000e-6 (e).

The same general requirements that apply to charges filed by private persons apply tocharges filed by the EEOC, including that the charge be written and verified. 29 C.F.R. § 16011(a). The difference between individual and EEOC charges, however, is that the EEOC is notprovided the same latitude in curing technical defects as private persons. See, e.g. EEOC v. K-Mart Corp., 694 F.2d 1055, 1064 (6th Cir. 1982) (charge filed by EEOC must meet technicalrequirements of 29 C.F.R. § 1601.12 (a)(3) on face of charge).

With regard to pattern or practice claims brought by the EEOC, the Supreme Court hasheld that a charge filed by the EEOC is sufficient if the Commissioner, as far as possible, identifiesthe groups of persons it has reason to believe have been discriminated against, the categories ofemployment positions from which they have been excluded, the methods by which the

discrimination was effected, and the time periods during which the discrimination took place. Shell Oil Co., 466 U.S. at 73.

. PROPER RESPONDENTS

Title VII, by its own terms, prohibits discrimination by employers, labor organizations, andemployment agencies. 42 U.S.C.A. § 2000e-2. The EEOC has no jurisdiction over persons orentities that do not fall within those definitions. See id. Although these terms appearstraightforward, the proper respondent must be named in the charge or risk waiving a claim maybe waived in any lawsuit which develops out of the charge.

. EmployersAn employer is defined as "a person engaged in an industry affecting commerce who has

15 or more employees for each working day in each of 20 or more calendar weeks in the currentor preceding year, and any 'agent' of such person." 42 U.S.C.A. § 2000e (b). In order topromote the goals of Title VII, courts apply the definition of employer liberally. See Harvey v.Blake, 913 F.2d 226, 227-28 (5th Cir. 1990). The same is true under the TCHRA. Mandell v.Posner Lab., Inc., 778 F.Supp. 12, 13 (N.D. Tex. 1991) (TCHRA should be construed accordingto the fair import of its terms and not to be used to defeat the intent of the Legislature). Variousissues arise in determining whether a person should be considered an "employer" under Title VII. The most significant of those issues are discussed below.

. Employment Relationship?The threshold inquiry when analyzing if a person is an "employer" is whether there exists

an employment relationship between the parties at all. See Deal v. State Farm County Mut. Ins.Co., 5 F.3d 117, 118-19 (5th Cir. 1993). This analysis is much the same as that used by courts todetermine if a person is an employee or an independent contractor. See § III-C, supra. Indetermining whether such an employment relationship exists, the Fifth Circuit applies the hybrideconomic realties/common law control test adopted in Marsh v. Mares, 777 F.2d 1066, 1067 (5thCir. 1985, which focuses on both the economic reality of the relationship as well as the employer'sright to control the manner and means of the employee's performance. Mares, 777 F.2d at 1067. See also § III-C, supra.

In Deal, the court held that State Farm Insurance was not the "employer" of Deal, whowas employed by an independent insurance agent affiliate ("Hunt") of State Farm. Deal, 3 F.3d at119. The court noted that State Farm had no control over Deal, nor did the "economic realities"of her relationship with State Farm suggest an employer/employee relationship. Id. Rather, Huntwas solely responsible for hiring, firing, supervising, and setting Deal's work schedule. Id. Moreover, Hunt alone paid Deal's salary, withheld taxes from her paycheck, and provided herbenefits. Id. Thus, it was clear that State Farm was not in an employment relationship with Dealso as to subject it to Title VII liability. Id. See also Fields v. Hallsville Indep. Sch. Dist., 906F.2d 1017, 1020 (5th Cir. 1990), cert. denied, 498 U.S. 1026 (1991) (school teachers failed toprove employment relationship with state under Mares test); but see NME Hosp., Inc. v. Rennels,994 S.W.2d 142, 146 (Tex. 1999) (although employment relationship required under Title VII, a

direct employment relationship between plaintiff and defendant not required); Sibley Mem. Hosp.v. Wilson, 488 F.2d 1338, 1341-42 (D.C. Cir. 1973) (same).

. "Employees"To be considered an "employee" under Title VII, courts require some type of employment

relationship between the charging party and respondent. See § III, supra. For instance, officersand board members are not counted as employees unless they perform traditional employeeduties. See Kern v. City of Rochester, 93 F.3d 38, 71 (2nd Cir. 1996), cert. denied, 520 U.S.1155 (1997). However, person who considered herself a Salvation Army volunteer, but who wasselected, controlled, trained, and paid by the Salvation Army was held by the Fifth Circuit to be anemployee for the purposes of Title VII. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.1972). Persons who have been held not to be employees include: officers and board of directors,Kern, 93 F.3d at 71; majority shareholders, Vick v. Foote, 898 F.Supp. 330, 334- 35 (E.D. Va.1995), aff'd, 82 F.3d 411 (4th Cir. 1995), cert. denied, 519 U.S. 935 (1996); independentcontractors, Mares v. Marsh, 777 F.2d 1066, 1069 (5th Cir. 1985); and partners in a law firm,Devine v. Stone, Leyton, & Gershman, 100 F.3d 78, 82 (8th Cir. 1996), cert. denied, 520 U.S.1211 (1997) but see Hishman v. King & Spalding, 467 U.S. 69, 75 (1984) (if partnershipconsideration is considered a term, condition, or privilege of associate's employment, thenpartnership consideration could not be based on factors prohibited by Title VII).

. Counting "Employees"The Supreme Court recently resolved a split in the circuit courts on counting the number

of employees to meet the statutory requirement of 15. In Walters v. Metro. Educ. Enter., Inc.,519 U.S. 202, 212, (1997), the Court held that "payroll approach" to counting employees was theproper method. Walters, 519 U.S. at 212. The test counts those employees who are on thepayroll during the required 20 week period regardless of the number of days they actually work. Id. at 211. Under the test, hourly, part-time employees are counted even though they do notwork everyday. See Vera-Lozano v. Int'l Broad., 50 F.3d 67, 69- 70 (1st Cir. 1995).

A split in courts has recently arisen over counting employees of foreign entities notcontrolled by American employers. The dispute arises in certain situations because Title VII doesnot apply to the foreign operations of foreign entities which are not controlled by domesticemployers. 42 U.S.C.A. § 2000e-1(c)(2). However, a foreign corporation with operations in theUnited States may be subject to Title VII with regard to its U.S. operations. 42 U.S.C.A. §2000e-1(c)(1). Several district courts have held that the employees of foreign entities not subjectto Title VII should not be counted to meet Title VII's minimum requirements. See Minutillo v.Aqua Signal Corp., 1997 WL 156495, *2 (N.D. Ill. 1997); Russell v. Midwest-Werner &Pfeiderer, Inc., 955 F.Supp. 114, 115 (D. Kan. 1997); Kim v. Dial Serv. Int'l, Inc., 1997 WL5902, *3 (S.D. N.Y. 1997).[7]

The Second Circuit disagreed with those courts and held that, for ADEA purposes,foreign employees should count in determining "employer" status. Morelli v. Cedel, 141 F.3d 39,44-45 (2nd Cir. 1998). The court noted that merely because foreign employees are not protectedunder Title VII does not preclude them from being included in the count because the "nose countof employees relates to the scale of the employer rather than to the existence of the protection."

Morelli, 141 F.3d at 45. Moreover, employees under the age of 40 are included in the count bythe statute even though they do not have rights under the ADEA. Id. Finally, the courtconcluded that none of the justifications for imposing minimum employee requirements to theADEA "suggests that whether a foreign employer is subject to the ADEA should turn on the sizeof its U.S. operations alone." Id.

While the Fifth Circuit has yet to take a definitive stance on the issue, at least one federaldistrict court in Texas has agreed with the reasoning in Morelli and held that foreign employeesshould be included in determining "employer" status. Wildridge v. IER, Inc., __ F.Supp.2d __,1999 WL 692360, *2 (N.D. Tex. 1999). In that case, the plaintiff alleged that during her tenurewith IER, an American subsidiary of a French parent company, IER SA, IER engaged indiscrimination against Americans and in favor of French employees. Id. The EEOC dismissed hercharge because IER did not meet the requisite 15 employee minimum. Id. The Northern District,however, held that the proper method of counting IER's employees was to include IER SA'semployees as well. Id. at *2. It followed Morelli's reasoning that although overseas employees ofthe foreign parent may not be substantively protected by Title VII, they still should be countedtoward the 15 employee requirement minimum if the foreign parent's size indicated an ability toshoulder the burdens of complying with Title VII and subsequent litigation costs. See id.

. Who is the "Employer"In the usual case, it is relatively simple to determine who an employee's "employer" is.

However, where large corporations or business entities are involved, the task may become a bitmore difficult. The following tests are utilized by courts to determine who the real "employer" is.

. "Single Employer" TheorySuperficially distinct business entities, such as parent and subsidiary corporations, may

both be exposed to liability upon a finding that they represent a single, integrated enterprise. Trevino v. Celanese, Corp., 710 F.2d 397, 404 (5th Cir. 1983), cert. denied, 465 U.S. 1065(1984). In determining whether separate business entities constitute a single, integrated employerfor purposes of Title VII liability, the Fifth Circuit considers four factors: (1) the degree ofinterrelationship, (2) common ownership and control, (3) common management, and (4)centralization of labor relations and personnel functions. Garcia v. Elf Altochem N. Am., 28 F.3d446, 450 (5th Cir. 1994) (in the absence of any of the four factors, a single enterprise will not befound), abrogated on other grounds, Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75(1997). Traditionally, however, the focus has been almost exclusively on the final factor. Skidmore v. Precision Printing & Packaging, Inc., 1999 WL 710539, *7 (5th Cir. 1999) (to bereported at 188 F.3d 606). Thus, the question courts invariably ask is "which entity made thefinal decisions regarding employment matters relating to the person claiming discrimination?" Seeid. If separate entities are considered a "single employer" under the four factor test, any one ofthe entities may be found liable for the discriminatory acts of another. See Trevino, 710 F.2d at405.

. "Joint-Employer" TheoryUnder a "joint-employer" theory, a business that is not the employer-in-fact of an

employee may still be treated as a joint employer with the employer-in-fact and be subjected to

liability. See Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235, 237 (5th Cir. 1973),cert. denied 414 U.S. 819 (1973). The distinction between the single employer theory and a jointemployer theory is that the former combines two entities into a single, integrated employer forpurposes of Title VII liability. Joint employer status, on the other hand, merely subjects aseparate employer (such as an independent contractor) to liability without treating it as a single,integrated employer. Cf. Skidmore, 1999 WL 710539 at *7.

Whether a business is considered a joint employer is a question of fact, with the entireemployment relationship taken into consideration. Hodsgon, 471 F.2d at 237. Factors that courtsuse to determine whether joint employer status exists are: (1) location of the employee'semployment; (2) amount of control over employee exerted by the alleged joint employer; (3)whether the alleged joint employer has the power to hire, fire, or modify the employmentrelationship; 4) whether the employee performs a specialty job; and 5) whether the employee mayrefuse to work for the alleged joint employer. Id.

In Hodgson, Griffin and Brand ("Griffin") was a company engaged in harvesting andpackaging fruit and vegetables in South Texas. Id. at 236. Its labor force was drawn primarilyfrom Mexican-American migrant farm labor. Id. In order to obtain the services of the migrantworkers, Griffin dealt with "crew leaders," who actually contacted the workers and transportedthem to the work site. Id. Griffin paid the crew leaders and did not pay the workers directly; thecrew leaders were responsible for paying the workers. Id. Griffin argued that the absence ofdirect payment clearly indicated that it was not the employer of the workers. Id. By applying thefour part test discussed above, the court held that Griffin was a joint employer of the workersalong with the crew leaders. Id. It noted that 1) the work took place on Griffin's property; 2) Griffin employees supervised the work of the migrant workers; 3) Griffin actually set the rate ofthe workers' pay; and 4) Griffin kept social security records on the workers. Id. at 238. Suchfactors led the court to believe an employment relationship existed. Id. Thus, Griffin was held tobe a joint employer for purposes of Title VII. Id.

. Agent LiabilityWhile an employer may be liable for the discriminatory practices of its agents, the Fifth

Circuit has expressly held that employees, including supervisors, and agents may not be held liablein their individual capacities. Grant v. Lone Star Co., 21 F.3d 649, 651 (5th Cir. 1994), cert.denied, 513 U.S. 1015 (1994). See also Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir. 1990)(public employees not liable in their individual capacities); Brown v. St. Joseph's Hosp. & HealthCtr., 998 F.Supp. 727, 729 (E.D. Tex. 1998) (supervisor cannot be held individually liable underestablished Fifth Circuit precedent); City of Austin v. Gifford, 824 S.W.2d 735, 742 (Tex.App.-Austin 1992, no writ) (city employees cannot be held individually liable under TCHRA).

. Third Parties & "Sibley Standing"A line of cases has developed under Title VII, and now the TCHRA, which holds a direct

employment relationship between the plaintiff and defendant is not necessary. Sibley Mem. Hosp.v. Wilson, 488 F.2d 1338, 1341-42 (D.C. Cir. 1973); NME Hosp., Inc. v. Rennels, 994 S.W.2d142, 146 (Tex. 1999). Such cases arise where a direct employment relationship does not existbetween the plaintiff and defendant, but the plaintiff is able to show that the defendant controlled

access to the plaintiff's employment opportunities and denied or interfered with that access basedon unlawful criteria. Rennels, 994, S.W.2d at 144-45.

In Sibley, the first case to find standing for a plaintiff who was not in a direct employmentrelationship with the defendant, the plaintiff was a male private duty nurse. Sibley, 488 F.3d at1339. The plaintiff, who was not directly employed by the defendant hospital, received workassignments pursuant to an arrangement where patients requiring private nurses informed thehospital, who in turn informed a nurse registry. Id. The registry then informed nurses like theplaintiff of the assignment. Id. The patient was responsible for compensating the plaintiff andcould reject or terminate his services for any reason. Id. at 1342. The extent of the hospital'sinvolvement in the relationship was controlling the premises upon which the services wererendered, including the plaintiff's access to the patient for the purposes of initiating theemployment. Id.

The plaintiff claimed that the defendant discriminated against him in violation of Title VIIwhen its supervisory nurses would not allow him to report to certain requesting patients becausehe was male and the requesting patients were females. Id. at 1339-40. The hospital claimed thatbecause it was not the plaintiff's direct employer, it was not liable under Title VII. Id. at 1339. The court noted, however, that "[t]o permit a covered employer to exploit circumstancespeculiarly affording it the capability of discriminatorily interfering with an individual's employmentopportunities with another employer, while it could not do so with respect to employment in itsown service, would be to condone continued use of the very criteria for employment thatCongress has prohibited." Id. at 1341. Thus, the court held that the plaintiff had standing tobring suit against the hospital despite the fact that no direct employment relationship existed. Id. In Rennels, the Texas Supreme Court relied on Sibley to hold that a pathologist whoseemployment opportunities were allegedly interfered with by a third party hospital had "Sibleystanding" to bring a suit under the TCHRA against the hospital. Id. at 147-48. The courtexpressly followed the reasoning in Sibley and noted that despite being called into question inBloom v. Bexar County, 130 F.3d 722, 725 n.2 (5th Cir. 1997), Sibley standing had never beenexpressly disapproved by the Fifth Circuit. Id. at 144-45; Sibley, 488 F.2d at 1341-42. Further,the court pointed out that the humanitarian and remedial nature of the TCHRA and Title VII wereserved by holding a third party liable for interference with employment opportunities. Id. at 146.

To maintain Sibley standing, a plaintiff must demonstrate that an employer otherwisesubject to Title VII, "by using its position of power and control, adversely and wrongfullyinterfered with the plaintiff's employment relationship with a third party." Id. at 147. Thus, theplaintiff must show: 1) that the defendant is an employer under the TCHRA; 2) the existence of anemployment relationship between the plaintiff and a third party; and 3) that the defendantcontrolled access to the plaintiff's employment opportunities with the third party and denied orinterfered with that access based on unlawful criteria. Id.; See Sibley, 488 F.2d at 1342.

Applying those factors to the facts of the case, the court held that the hospital was in aposition to exert control over the plaintiff's employment opportunities because its contracts withthe plaintiff's employer gave the hospital control over certain employment matters. Id. That

control included a provision which prevented the employer, a pathology association, fromtransferring any ownership interest without the hospital's consent. This effectively gave thehospital control over partnership decisions at the pathology association. Id. That control wasenough for the court to find Sibley standing for the plaintiff. Id. at 147-48.

. UnionsIn order for a union to be a proper respondent under Title VII, it must 1) maintain and

operate a hiring hall or hiring office, or have 15 or more members and 2) either a) be a certifiedbargaining representative under the National Labor Relations Act or the Railway Labor Act, b) beotherwise recognized as representing employees, or c) have some formal relationship with a unionthat is covered under Title VII (usually through a local's affiliation with the national union). 42U.S.C.A. § 2000e(e). Moreover, a union must represent "employees," who are defined asindividuals "employed by an employer." 42 U.S.C.A. § 2000e(f). Thus, if a union representsindividuals who are not employed by a Title VII employer, the union itself is not subject to TitleVII. See Renfro v. Office & Prof'l Employees Local 277, 545 F.2d 509, 510 (5th Cir. 1977)(local union was not covered by Title VII with respect to claim by member whose employer hadonly one employee).

. Employment AgenciesEmployment agencies are subject to Title VII liability if they "fail or refuse to refer for

employment or to otherwise discriminate" against protected persons. 42 U.S.C.A. § 2000e-2(b). An employment agency is defined as "any person regularly undertaking with or withoutcompensation to procure employees for an employer or to procure for employees opportunities towork for an employer." 42 U.S.C.A. § 2000e(c). Unlike the definition of "employer," thedefinition of employment agency does not impose size requirements for Title VII coverage.

Employment agencies may be sued either in their capacity as an employment agency or bytheir employees in their capacity as an employer. See Schattman v. Texas Employment Comm'n,459 F.2d 32, 37-38 (5th Cir. 1972), cert. denied, 409 U.S. 1107 (1973). However, while there isno minimum employee requirement to be sued as an employment agency, a court will have nojurisdiction over an employment agency sued in its capacity as an employer unless it employs 15employees. Greenlees v. Eidenmuller Enter., Inc., 32 F.3d 197, 199 (5th Cir. 1994).

. International Issues[8]

. Americans Employed in Foreign CountriesU.S. citizens employed by a U.S.-controlled company in a foreign country are covered by

Title VII. 42 U.S.C.A. § 2000e(f). Title VII exempts, however, extraterritorial employmentpractices if compliance with U.S. law would violate applicable foreign law. 42 U.S.C.A. §2000e-1(b). See also EEOC, Enforcement Guidance on Application of Title VII and ADA toConduct Overseas and to Foreign Employers in the United States (Oct. 20, 1993), reprinted inFEP Man. (BNA) 405:6663, :6668-6671 ("EEOC Oct. 1993 Guidance").. Aliens Employed Outside the United States

Title VII does not apply to aliens employed by a U.S. company who work outside theUnited States or its territories. 42 U.S.C.A. § 2000e-1(a). See Iwata v. Stryker Corp., 1999 WL603917, *3 (N.D. Tex. 1999) (to be reported at 59 F.Supp.2d 600) (Japanese employee who

performed all work in Japan was not covered under Title VII despite American parentcorporation's control of Japanese subsidiary).

. Foreign Employers Operating in the United StatesTitle VII offers no special protection to subsidiaries of foreign corporations doing business

in the United States. See generally 42 U.S.C.A. § 2000e-1(c). The key issue with respect toAmerican subsidiaries of foreign parent corporations is typically whether a treaty protects thecompany's discriminatory acts. See Papaila v. Uniden Am. Corp., 51 F.3d 54, 56 (5th Cir. 1995),cert. denied, 116 S.Ct. 187 (1995). In Papaila, the Fifth Circuit affirmed the dismissal of a TitleVII action in which the plaintiff asserted he had been discriminated against based upon his nationalorigin by his employer, a wholly owned American subsidiary of a Japanese parent corporation. Papaila, 51 F.3d at 56. The plaintiff alleged that fellow employees who were Japanese citizensreceived more favorable treatment than he received, including higher base salaries, fringe benefitsand job protection. Id. at 55. The employees who received the favorable treatment were sent ontemporary work assignments by the Japanese parent to protect its interests in the Americansubsidiary. Id.

The court held that, despite the apparent discrimination, the American subsidiary couldinvoke its parent's rights under the Japanese-American Friendship, Commerce and Navigation("FCN") Treaty to the extent that the subsidiary's discriminatory employment decisions weredictated by the parent. Id. The FCN allows Japanese corporations to discriminate in favor ofcitizens from its own country in filling specified high-level positions, such as those at issue in thiscase. Id. Since the subsidiary "did not itself cause any of the discriminatory conduct," it couldnot be held liable under Title VII because its parent corporation was merely exercising its rightsunder the FCN. Id. See also Bennett v. Total Minatome Corp., 138 F.3d 1053, 1058-59 (5thCir. 1998) (treaty between France and U.S. shielded American subsidiary of French parentcorporation from Title VII liability for discriminating in favor of French citizens); Fortino v.Quasar Co., 950 F.2d 389, 393 (7th Cir. 1991) ("[t]he exercise of a treaty right may not be madethe basis for inferring a violation of Title VII).

. Extraterritorial Activities of Foreign EmployersTitle VII specifically exempts from its coverage "the foreign operations of an employer

that is a foreign person not controlled by an American employer" with respect to discriminationand retaliation claims. 42 U.S.C.A. § 20003-1(c)(2). Whether an employer is considered a"foreign person" is determined initially by its place of incorporation. EEOC Oct. 1993Enforcement Guidance, FEP Man. at 405:6665. If incorporated in the United States, it willtypically be considered American. Id. However, if it is incorporated in a foreign country, it willstill be considered American if it has significant connections in the United States. Id. Even if theemployer is found to be a "foreign person," a controlling American employer may still be liable forthe unlawful acts of the foreign respondent because any discriminatory acts of a foreigncorporation are presumed to be engaged in by the controlling American employer." 42 U.S.C.A.§ 20003-1(c)(1); See also EEOC Oct. 1993 Guidance, FEP Man. at 405:6671.

. WHERE TO FILE A CHARGE

A charge may be made in person or by mail at the offices of the Commission inWashington, DC, or any of its field offices or with any designated representative of theCommission. 29 C.F.R. § 1601.8 (Title VII, ADA); 29 C.F.R. § 1626.5 (ADEA). The FifthCircuit has even held that a charge addressed to a regional director of the EEOC at his residentialaddress as a private individual is still effective. Georgia Power Co. v. EEOC, 412 F.2d 462,466-67 (5th Cir. 1969).

. FEP Agency FilingThese "designated representatives of the Commission" are state and local agencies known

as "FEP agencies," "state deferral agencies," or "706 agencies" (referring to § 706 of Title VII). 29 C.F.R. § 1601.70, 71 (Title VII and ADA); 29 C.F.R. § 1626.9, .10 (ADEA).

. When MandatorySection 706(c) of Title VII provides that a charge of discrimination must first be filed with

a state or local agency if it has concurrent jurisdiction over the alleged violation. 42 U.S.C. §2000e-5(c). Filing with FEP agencies is required even if not all of the remedies available underTitle VII are provided by the FEP agency. White v. Dallas Indep. Sch. Dist., 581 F.2d 556, 560(5th Cir. 1978).

. Deferral Issues

. 60-day Time PeriodSection 706(c) grants states and their political subdivisions the exclusive right to process

allegations of discrimination filed by a person other than a Commissioner for a period of 60 days. 29 C.F.R. § 1601.13(a)(3)(ii). After the expiration of the exclusive 60-day period, then theEEOC may commence processing the allegation of discrimination. Id. This deferral requirementis intended to give state agencies a limited opportunity to resolve problems of employmentdiscrimination and thereby make resorting to federal relief by victims of discrimination. OscarMayer & Co. v. Evans, 441 U.S. 750 (1979). . State Waiver of Deferral & Worksharing Agreements

An FEP agency may waive its right to this 60-day deferral period, however. 29 C.F.R. §1601.13(a)(3)(iii). An FEP agency typically does so by entering into a "work-sharing agreement"with the EEOC. For example, the TCHR has entered into a "work-sharing agreement" with theEEOC providing that the filing with the TCHR constitutes simultaneous filing with the EEOC andvice versa. See 29 C.F.R. § 1601.13(a)(4)(ii); 29 C.F.R. § 1626.10(c). See also Appendix, supra.

An FEP agency's waiver of its exclusive 60-day period for initial processing of the chargealso constitutes "termination" of the state proceedings. Thus, the EEOC may deem such chargesto be filed, and begin immediate processing.

. EEOC FilingCharges arising in jurisdictions with no FEP agency are filed with the EEOC upon receipt.

29 C.F.R. § 1601.13(a). A jurisdiction having a FEP agency without subject matter jurisdictionover a charge (e.g., an agency which does not cover sex discrimination or nonprofitorganizations) is equivalent to a jurisdiction having no FEP agency. 29 C.F.R. § 1601.13(b).

. WHEN TO FILE A CHARGE

The timely filing of charges with the EEOC is a jurisdictional requirement that must bemet for the EEOC to have the power to investigate and conciliate. Section 706(e)(1) providesthat a charging party must file an EEOC charge within either 180 or 300 days of the allegedunlawful employment practice. 42 U.S.C. § 2000e-5(e)(1); Tex. Lab. Code §§ 21.201-.202.

. 180-Day Filing PeriodIf a charge is filed in a jurisdiction having no FEP agency, or the equivalent of no FEP

agency, then such charges are timely filed if received by the EEOC within 180 days from the dateof the alleged violation. 29 C.F.R. § 1601.13(a)(1), (2).

. 300-day Filing Period; TexasIf a charge is filed in a jurisdiction with an FEP agency, then the charge must be filed with

the EEOC within 300 days after the alleged discriminatory act occurred. 42 U.S.C. § 2000e-5(e).Four cases have been decided by the Fifth Circuit outlining the relationship between the

TCHR and the EEOC. In Mennor v. Fort Hood National Bank, the court ruled that the 300-dayfiling period set forth in § 706(e) applies regardless whether state proceedings are timely filedunder state or local law. 829 F.2d 553, 554 (5th Cir. 1987). In Urrutia v. Valero Energy Corp,the court went on to hold that a nominal filing with the proper state or local agency is all that isrequired to institute proceedings under the terms of section 706(e). 841 F.2d 123, 125 (5th Cir.),cert. denied, 488 U.S. 829 (1988). The court decided in Urrutia that this nominal filingrequirement was satisfied when the EEOC transmitted a copy of the charge to the TCHR. Thedecision in Urrutia was reaffirmed one year later in Washington v. Patlis, 868 F.2d 172 (5th Cir.1989). In the fourth case, the court then held that the EEOC's acceptance of a charge as theTCHR's agent satisfied Urrutia's filing requirements and instituted proceedings with the TCHR. Griffin v. City of Dallas, 26 F.3d 610, 613 (5th Cir. 1994).

. Equitable TollingFiling a timely charge with the EEOC is not an absolute jurisdictional prerequisite to suit

but rather a requirement that, like a statute of limitations, is subject equitable principles includingequitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982).

Generally, three possible bases exist for equitable tolling: (1) the pendency of a suitbetween the same parties in the wrong forum; (2) the plaintiff's unawareness of the facts givingrise to the claim because of the defendant's intentional concealment of them; and (3) the EEOC'smisleading the plaintiff about the nature of rights. Chappell v. Emco Machine Works Co., 601F.2d 1295 (5th Cir. 1979). Although these are not the only bases for equitable tolling and othersmay exist, the Fifth Circuit has been generally much less forgiving in receiving late filings wherethe charging party failed to exercise due diligence in preserving his legal rights. Pacheco v. Rice,966 F.2d 904, 906 (5th Cir. 1992) (requiring due diligence to warrant equitable tolling); Wilson v.Secretary, Department of Veterans Affairs, 65 F.3d 402 (5th Cir. 1995) (overseas mail delays didnot justify equitable tolling where attorney could have acted for employee); St. Louis v. TexasWorker's Compensation Comm'n, 65 F.3d 43 (5th Cir. 1995), cert. denied, 518 U.S. 1024 (1996);

Hood v. Sears Roebuck and Co., 168 F.3d 231 (5th Cir. 1999). (employee's mental incapacity didnot justify equitable tolling of 180-day period for filing charge with EEOC).

In Hood, the event triggering the period for filing an EEOC charge occurred no later thanMay 11, 1996. The employee, Francis Elaine Hood, nonetheless, failed to file a timely chargewith the EEOC. Hood argued that she failed to do so because of her mental illness and urged thecourt to adopt the traditional rule that mental illness tolls the limitations period if it prevents thesufferer from understanding her legal rights and acting upon them. Viewing the evidence in thelight most favorable to Hood, the Fifth Circuit found that she had retained counsel before the 180days had passed. This fact indicated that her mental illness did not prevent her from pursuing herlegal rights during the filing period. Accordingly, equitable tolling was not justified in that case.

When the employee alleges that the employer's deception caused the late filing, factualsupport is necessary. Denman v. Mississippi Power & Light Co., 906 F. Supp. 379 (S.D. Miss.1995); DeMoranville v. Specialty Retaliers, Inc., 909 S.W.2d 90, 93 (Tex. App.-Houston [14thDist.] 1995), rev'd on other grounds, 933 S.W.2d 490 (Tex. 1996) (equitable tolling applicablewhen employer hides vital information that prevents employee from knowing of discrimination). In Denman, the employee asserted that it was only well after his termination that he learned forthe first time that similarly-situated employees had been treated more favorably than he. Theplaintiff then concluded that his ignorance "was directly caused by the misrepresentations made bythe Defendant." The court held that the plaintiff's assertions must fail in the absence of anyshowing of who supposedly misled him, what supposedly was said, and how the deceptionprevented him from learning the true facts. Simply, the plaintiff failed to allege any facts whichwould warrant equitable tolling.

. Triggering the 180/300 Day Period

. Individual ActsAs a general rule, the clock starts ticking once the employee learns of the discriminatory

treatment, not when its effects are felt. For example, the filing period begins to run on the date anemployee is notified of his or her termination rather than the final day of employment. Clark v.Resistoflex Co., Div. of Unidynamics, 854 F.2d 762, 765 (5th Cir. 1988), aff'd, 68 F.3d 470 (5thCir. 1995), cert. denied, 516 U.S. 1141 (1996); Burfield v. Brown, Moore & Flint, Inc., 51 F.3d583, 588-89 (5th Cir. 1995); Chester v. American Tel. & Tel. Co., 907 F. Supp. 982 (N.D. Tex.1994); Speciality Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996); Benavides v.Moore, 848 S.W.2d 190 (Tex. App.-Corpus Christi 1992, writ denied).

The Texas Supreme Court has held that the discovery rule will not apply to toll the statuteof limitations for TCHRA claims. S.V. v. R.V., 933 S.W.2d 1, 4-8 (Tex. 1996).

. Continuing ViolationsThe Fifth Circuit recognizes an equitable exception to the 180/300 day filing requirement

where the unlawful employment practice is a continuing violation. Abrams v. Baylor College ofMedicine, 805 F.2d 528, 532 (5th Cir. 1986). To sustain a claim under this exception, theplaintiff must show that at least one incident of discrimination occurred within the relevantstatutory period. Id. The alleged discriminatory acts also must be closely related to each other to

constitute a continuing violation. The following non-exhaustive factors are relevant: (1) subjectmatter of the alleged acts; (2) frequency of alleged acts; and (3) degree of permanence associatedwith the alleged acts. Berry v. Board of Supervisors of La. State Univ., 715 F.2d 971, 981- 82(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).

. Notice to Employer/RespondentNotice of the charge is required to be served upon the respondent within 10 days after a

charge is filed. 42 U.S.C. § 2000e-(5)(b), (e); Tex. Lab. Code § 21.201(d).[9] The EEOC'sfailure to timely notify a respondent will generally not bar a private lawsuit. See, e.g., Smith v.American President Lines, Ltd., 571 F.2d 102, 107 n. 8 (2d Cir. 1978). This failure, however,may bar the EEOC from filing its own lawsuit. EEOC v. Firestone Tire & Rubber Co., 626 F.Supp. 90, 93 (M.D. Ga. 1985) (33-month delay in service of the charge supported employer'slaches defense).

. RIGHT TO SUE NOTICE

. Failure to Exhaust Administrative Prerequisites Once an employee files a charge with the EEOC, state, or local agency, he or she should

have little or no difficulty complying with the administrative prerequisites. Opportunities exist,however, to argue that the employee's claim should be barred on this basis. Barnes v. Levitt, 118F.3d 404 (5th Cir. 1997) (refusal to cooperate after filing formal charge barred claims); Fitzgeraldv. Secretary of U.S. Dept. of Vet. Affairs, 121 F.3d 203 (5th Cir. 1997) (rejecting agency'ssettlement offer granting full relief barred employee's claims); Boswell v. Department of theTreasury, Office of the Comptroller of the Currency, 979 F. Supp. 458 (N.D. Tex. 1997)(abandonment of administrative process barred claims).

. Federal LawAfter an aggrieved person has exhausted his or her administrative prerequisites, and after

the EEOC has notified him or her of its decision to dismiss or its inability to bring a civil actionwithin the requisite time period, that person may institute a civil action. 42 U.S.C. §2000e(5)(f)(1). The EEOC notifies the aggrieved person of their right to file a civil action byissuing a letter that is generally known as a right to sue notice.[10]

According to EEOC regulations, a notice of right to sue is issued: (1) when the EEOCmakes a finding of no reasonable cause to believe that an unlawful employment practice occurred;(2) when the EEOC decides not to sue despite finding reasonable cause; (3) where the EEOC hasentered into a conciliation agreement to which the aggrieved party has not joined; and (4) whenthe charge is dismissed. 29 C.F.R. §§ 1601.19(a), 1601.28(b).

The EEOC is required to issue a right to sue notice when an aggrieved person requests, inwriting, that a right to sue notice be issued. C.F.R. § 1601.28(a). This request, however, canonly be made after the expiration of 180 days from the date the charge was initially filed. Id.

If the aggrieved person requests a right to sue notice prior before the 180-day periodexpires, then the EEOC may nevertheless issue a right to sue notice if it determines that it will beunable to complete is administrative processing of the charge within the 180-day period. 29C.F.R. § 1601.28(a)(2).

Courts are split as to whether right to sue notices issued before the expiration ofthe180-day period are valid. Compare Abrams v. Holiday Inns, Inc., 656 F.Supp. 675, 680(W.D.N.Y. 1984) (invalid), with Weise v. Syracuse Univ., 522 F.2d 397, 412 (2d Cir. 1975)(valid).

. TCHRAThe statutory scheme for satisfying administrative prerequisites under the TCHRA is

different in some respects from its federal counterpart. First, if the TCHR dismisses a charge or does not resolve the charge before the 181st day

after the date it was filed, the TCHR must inform the complainant in writing by certified mail. Tex. Lab. Code § 21.208. The EEOC does not have this affirmative obligation. Once the TCHRnotice is received, the charging party may request, in writing, a right to sue letter. Tex. Lab.Code § 21.208.

The second important difference between the EEOC and the TCHR is that, under theTCHRA, the TCHR's failure to issue a right to sue letter does not affect the charging party's rightto bring a civil action. Id. Rather, the charging party is required to file his or her lawsuit withintwo years after filing the charge of discrimination. Tex. Lab. Code § 21.256. Stated another way,the charging party does not have to receive a right to sue notice in order to file suit. Eckerdt v.Frostex Foods, Inc., 802 S.W.2d 70, 71-72 (Tex. App.-Austin 1990, no writ).

. WHEN TO FILE THE LAWSUIT

. Federal Law: 90-Day RuleSection 2000e-5(f)(1) provides that "within ninety days after the giving of such notice a

civil action may be brought against the respondent named in the charge." 42 U.S.C. §2000e-5(f)(1); 29 C.F.R. § 1601.28(e).

. TCHRA: 60-Day RuleThe TCHRA has a similar provision. Section 21.254 provides that "[w]ithin 60 days after

the date a notice of the right to file a civil action is received, the complainant may bring a civilaction against the respondent." Tex. Labor Code § 21.254.

. Triggering the 60/90-Day Rule

. Federal LawSection 706(f)(1) provides that the 90-day period begins to run "after the giving of such

notice." 42 U.S.C. § 2000e-5(f)(1).. What Constitutes a "Notice"?

Not all documents issued by the EEOC necessary constitute a right to sue notice that will

trigger the 90-day limitations period. Williams v. Mississippi Action for Progress, Inc., 924 F.Supp. 621 (S.D. Miss. 1993) (EEOC's "determination letter" was not equivalent to right to sueletter). Similarly, a right to sue notice on one claim will not be construed as a right to sue noticeon a separate discrimination claim. Plant v. GMRL Inc., d/b/a Red Lobster, 10 F. Supp.2d 753(S.D. Tex. 1998).

. When is "Notice" Given?Courts have interpreted the phrase "after the giving of such notice" to mean that the

limitations period is triggered by the actual receipt of the notice. McDonnell Douglas Corp. v.Green, 411 U.S. 792, 798 (1973).

Actual receipt, however, does not necessarily mean actual receipt by the charging party. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92-93 (1990) (attorney); Espinoza v.Missouri Pac. R.R. Co., 754 F.2d 1247 (5th Cir. 1985) (wife); Ringgold v. Nat'l MaintenanceCorp., 796 F.2d 769, 770 (5th Cir. 1986) (attorney); Thomas v. Exxon, U.S.A., 943 F. Supp. 751(S.D. Tex. 1996), aff'd, 122 F.2d 1067 (5th Cir. 1997) (eighteen year old daughter).

. Tolling, Laches, and Related IssuesCourts have been reluctant extend the 90- day time period when a date certain can be

established. For example, in Espinoza, supra, the EEOC mailed the right-to-sue letter on May 3,1983 and it was received by Espinoza's wife on May 4, 1983. Espinoza, who was out of town,did not actually see the letter until he returned home on May 12, 1983. The suit was filed onAugust 3, 1983, ninety-two days after the letter was delivered to his home. Espinoza argued thatthe ninety-day period did not begin to run until he actually received the right-to-sue letter becauseit is only then that he became aware of his right to sue. The trial court rejected Espinoza'sargument and granted summary judgment for the employer. On appeal, the Fifth Circuit affirmedthe trial court's reasoning and held that:

the giving of notice to the charging party at the address designated by him suffices to start theninety-day period unless the charging party, through no fault of his own, failed to receive theright-to-sue letter or unless, for some other equitable reason, the statute should be tolled until heactually receives notice.

Espinoza, 754 F.2d at 1250.

The Fifth Circuit and its district courts have consistently applied the reasoning inEspinoza. See, e.g., Ringgold v. Nat'l Maintenance Corp., 796 F.2d 769, 770 (5th Cir. 1986)(summary judgment for employer affirmed where complaint was filed 92 days after delivery ofright-to-sue letter to attorney's office); Huff v. Int'l Longshoremen's Assoc., Local #24, 799 F.2d1087, 1090 (complaint filed 92 days after delivery of right-to-sue was untimely as a matter oflaw); Thomas v. Exxon, U.S.A., 943 F. Supp. 751 (S.D. Tex. 1996), aff'd, 122 F.2d 1067 (5thCir. 1997) (summary judgment for employer granted where complaint was filed 95 days afterdelivery of right-to-sue letter to plaintiff eighteen year old daughter at plaintiff's home); Avie v.Marley Cooling Tower Co., 952 F. Supp. 492, 494 (S.D. Tex. 1997) (summary judgment foremployer granted where complaint was filed 92 days after receipt of right-to-sue letter).

Even when the employee's testimony may be questionable, courts will generally accept thedate given by the employee. Fields v. Phillips Sch. of Business & Tech., 870 F. Supp. 149 (W.D.Tex. 1994) (employee's statement that right to sue notice was received on day issued contradictedinterrogatory answers, but was sufficient to deny summary judgment).

When a date certain cannot be determined, however, courts within the Fifth Circuit varyon what constitutes a reasonable time after mailing for deeming the right to sue notice received. Davidson v. Serv. Corp. Int'l, 943 F. Supp. 734, 738 (S.D. Tex. 1996), aff'd, 132 F.3d 1454 (5thCir. 1997) (presumed that a mailed document is received within three days after its mailing)(citing Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-152 (1984)); McNeill v.Atchison, Topeka & Santa Fe Ry. Co., 878 F. Supp. 986, 990 (S.D. Tex. 1996) (seven days formailing was reasonable time) Dade v. Southwestern Bell Tel. Co., 942 F. Supp. 312, 318 (S.D.Tex. 1996) (seven days).

. TCHRA ClaimsAs outlined above, the TCHR's procedures are not identical in all respects to the EEOC's

procedures. At lease one of these differences creates a potential malpractice trap.

Specifically, under the TCHRA, once a charge is filed, the plaintiff is not required to waitfor a right to sue letter before filing suit. Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 71-72(Tex. App.-Austin 1990, no writ). However, the TCHRA also provides that "[w]ithin 60 daysafter the date a notice of the right to file a civil action is received, the complainant may bring acivil action against the respondent." Tex. Labor Code § 21.254[11] The potential for problemsarises when a charging party receives a right to sue notice from the EEOC, then files an actionunder the TCHRA over sixty days later.

Several Texas federal district courts who have considered the question have barred claimsunder the TCHRA as a matter of law when the plaintiff fails to file a lawsuit within 60 days ofreceiving an EEOC right-to-sue letter. Zevator v. Methodist Hosp. of Houston, Texas, 4 Amer.Disab. Cas. (BNA) 1043, 1995 WL 500637 (S.D. Tex. 1995); Battee v. Eckerd Drugs, Inc.,1997 WL 340941, n. 3 (N.D. Tex. 1997); Dean v. Xerox Corp., 1997 WL 756574 (N.D. Tex.1997).

In Zevator, the plaintiff sued her former employer for, inter alia, employmentdiscrimination under the TCHRA. It was undisputed that the plaintiff received her EEOCright-to-sue letter on August 26, 1993, and filed her suit alleging a claim under the TCHRA instate court on November 18, 1993, 85 days later. The trial court dismissed the plaintiff's TCHRAclaim and court held that "[t]he language of the statute is clear that should a complainant chooseto file suit, she must do so within this [60-day] time period." Zevator, 4 Amer. Disab. Cas.(BNA) at 1045. Accordingly, the court granted the defendant's motion for summary judgmentand dismissed plaintiff's TCHRA claim. Id.

Similarly, in Battee, the plaintiff brought suit under both Title VII and the TCHRA forsexual harassment and retaliation. Again, the undisputed evidence established that the EEOCissued its right-to-sue letter on February 5, 1996 and that the plaintiff filed her complaint on May

3, 1996, well over 60 days later. Once again, the court dismissed the plaintiff's TCHRA claimsbecause she filed her lawsuit more than 60 days after receiving her right-to-sue letter. Battee v.Eckerd Drugs, Inc., 1997 WL 340941, n. 3 (N.D. Tex. 1997).

Finally, in Dean, the EEOC issued its right- to-sue letter on March 21, 1996 and theplaintiff filed his lawsuit on July 31, 1996, more than 130 days later. Again, The court held thatplaintiff's race discrimination claim under the TCHRA was barred as a matter of law because hefiled his lawsuit more than 60 days after receiving his right-to-sue letter from the EEOC. Dean v.Xerox Corp., 1997 WL 756574 (N.D. Tex. 1997).

The courts' interpretation of § 21.254 follows the literal language of the statute and appears consistent with language in the EEOC's Right-to-Sue letter which states, in pertinent part:

Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this Notice; otherwise, yourright to sue based upon this charge will be lost. (The time limit for filing suit based on a stateclaim may be different).

Thus a charging party who receives a right to sue letter from the EEOC and chooses to assertstate-law claims, may have only 60 days in which to file those claims.

. What Constitutes "Filing"The Fifth Circuit has held that even the barest "complaint" will satisfy the filing

requirement as long as the 90-day time limit is met. McClellon v. Lone Star Gas Co., 66 F.3d 98(5th Cir. 1995). In McClellon, a pro se plaintiff filed a document which purported to be acomplaint within 90 days of receiving her right to sue notice. The "complaint" indicated that shehad not filed a claim in any other jurisdiction, that she was denied the opportunity to return towork after her doctor discharged her regarding a work-related injury, and that she desiredmonetary compensation. The clerk would not consider the document "filed" because it did notsatisfy the requirements of FRCP 8. On appeal, the Fifth Circuit held that although the"complaint" failed to meet the technical requirements of Rule 8, the clerk of the court lackedauthority to refuse or to strike a pleading presented for filing. McClellon, 66 F.3d at 102. Similarly, the employee need not pay filing fee or serve the employer to constitute filing. Loweryv. Carrier Corp., 953 F. Supp. 151 (E.D. Tex 1997).[1] This paper focuses on the charging process for Title VII of the Civil Rights Act of 1964("Title VII"), the Americans with Disabilities Act ("ADA"), and the Texas Commission on HumanRights Act ("TCHRA"). In most cases, the analysis is equally applicable to Age Discrimination inEmployment Act ("ADEA") claims as well. Where different procedures exist for ADEA claims,they will be addressed in footnotes.[2] Under the ADEA, a charging party may file either a "charge" or a "complaint." 29 C.F.R.§ 1626.3.[3] A charge or complaint under the ADEA is not required to be verified. See 29 C.F.R.§1626.8(a).[4] EEOC Form 283. The intake questionnaire is the document a charging party completesduring her initial visit with the EEOC. Typically it is used to solicit preliminary informationregarding the charging party's allegations. It is on the basis of the intake questionnaire that the

EEOC determines whether grounds exist for filing a formal charge. [5] The EEOC takes the position that a charge may be amended to allege additional actswhich constitute unlawful employment practices if those practices "relate[ ] to or grow out of thesubject matter of the original charge" and "relate back to the date the charge was first received." 29 C.F.R. § 1601.12 (b).

The TCHRA takes a similar position, providing that complaints filed with the TCHR maybe "amended to cure technical defects or omissions, including failure to verify the complaint. . . ." 40 Tex. Admin Code. § 327.1(g). It also provides that amendments made to complaints relateback to the date the original complaint was filed. Id. See Hennigan v. I.P. Petroleum Co., Inc.,858 S.W.2d 371, 372 (Tex. 1993) (allowing amended, verified TCHRA charge to relate back tofiling of original, unverified questionnaire).[6] The TCHR Commissioner has the power to "file civil actions to effectuate the purposes"of the TCHRA. Tex. Lab. Code § 21.003(a)(3). However, the TCHRA does not specificallyallow the Commissioner to file a charge with the TCHRA. See id.[7] For a discussion of other issues involving foreign parent corporations and Americansubsidiaries, see § V-D, infra.[8] For a discussion of issues regarding counting a foreign corporation's foreign employees tomeet Title VII's minimum employee requirement, see § V-A-3, supra. [9] Section 7(d) of the ADEA provides only that the EEOC "promptly notify" all namedrespondents. 29 U.S.C. § 626(d).[10] A right to sue letter is not a prerequisite to file a civil lawsuit under the ADEA as long asthe charge in issue has been filed with the EEOC and the TCHR. Weaver v. Ault Corp., 859 F.Supp. 256 (N.D. Tex. 1993).[11] When construing the TCHRA, Texas courts have considered how similar clauses underfederal Civil Rights Acts are implemented. Fogle v. Southwestern Bell Telephone Co., 800 F.Supp. 495 (W.D. Tex. 1992); Eckert v. Frostex Foods, Inc., 802 S.W.2d 70 (Tex. App.--Austin,1990, no writ); Like its state counterpart, Title VII has a nearly identical provision which providesthat "within ninety days after the giving of such notice a civil action may be brought against therespondent named in the charge." 42 U.S.C. § 2000e-5(f)(1); Baldwin County Welcome Ctr. v.Brown, 466 U.S. 147 (1984).