The Equal Employment Opportunity Commission (EEOC) was established by Title VII of the Civil Rights Act of 1964.1  The EEOC enforces the principal federal statutes prohibiting employment discrimination, usually through investigation of administrative charges brought by individuals who believe they have been discriminated against. The EEOC investigates timely complaints and may help mediate or even sue for a complainant, but most often ends up issuing a “right to sue” letter authorizing the complainant to pursue an action in court, but only within a fairly short period of time.

The EEOC may order various forms of relief including hiring, reinstatement, promotion, back pay, reasonable accommodations, posting of notices, and fees and costs. If intentional discrimination is found, compensatory and punitive damages may be awarded under most EEOC-enforced laws. Claims not addressed in the charge generally may not be raised in subsequent litigation.

All laws enforced by the EEOC, except for the Equal Pay Act and retaliation claims, generally require the timely filing of an EEOC charge before a private lawsuit may be filed in court. Equitable tolling is allowed, but only in limited circumstances. A charge should be filed within 180 days of the alleged unlawful action (300 days if the charge is also covered by a state or, with all laws but the ADEA, local anti-discrimination law).2

After a charge is filed with the EEOC, if the charge is also covered by a state or local law, the EEOC “dual files” the charge with the Louisiana Commission on Human Rights.3  The EEOC decides how to prioritize the charge and may investigate. While it may dismiss a complaint for lack of merit on its face without conducting an investigation, the EEOC must accept any and all charges of discrimination. If the EEOC dismisses a charge for insufficiency of evidence or was unsuccessful in mediation or settlement, it will issue a “right to sue” letter, which gives the complainant 90 days in which to institute a civil action.

The Louisiana Commission on Human Rights (LCHR) is ostensibly empowered to investigate and enforce complaints about employment practices arising under state antidiscrimination laws. However, a plaintiff under Louisiana’s statutes is not required to file with the LCHR or the EEOC prior to filing a civil lawsuit in state court.4  LCHR’s practical function is merely to extend the EEOC filing deadline. The LCHR does not conduct independent investigations, and there are no field offices in the state. There is no real practical reason to file with the LCHR. If you do so for some reason, the process is essentially the same as with the EEOC, and the time limits for filing are the same. The LCHR will also “dual file” with EEOC any complaint that is also covered by federal law. Any party may seek judicial review of LCHR action in accordance with the Louisiana Administrative Procedure Act (i.e., within 30 days).5

If there is a local law that applies to your client’s case, other deadlines and procedures will apply.

The EEOC website offers extensive guidance on all the laws it enforces;6  this manual addresses most but not all of these laws.

• 1See 42 U.S.C. § 2000e et seq.; 29 C.F.R. § 1600 et seq.
• 2To extend the period for filing a judicial action, the state must also have an agency that enforces the particular state antidiscrimination statute at issue. Louisiana has such an agency, the Louisiana Commission on Human Rights.
• 3See La. R.S. 51:2231, et seq.
• 4Coutcher v. La. Lottery Corp., 97 0666 (La. App. 1 Cir. 11/7/97), 710 So. 2d 259.
• 5See La. R.S. 49:964. Complaint forms are available on the LCHR’s website. See La. Comm’n on Hum. Rts.
• 6See U.S. Equal Emp. Opportunity Comm’n.

Title VII of the Civil Rights Act of 1964 prohibits discrimination because of a person’s race, color, sex (including sexual orientation), religion or national origin in many aspects of the employment relationship, including pre-hiring procedures, working conditions, performance reviews, post-employment references, harassment on the job, and retaliation. Whether an employer is covered depends on the type of employer and other factors.1  A claim may also be raised under sections 1981 and 1983 of the Civil Rights Act of 18662  and the later addition, 42 U.S.C. § 1981a.

The Pregnancy Discrimination Act amended Title VII to protect employees and job applicants from discrimination in any aspect of employment based on pregnancy, childbirth, or any related medical condition. In essence, this law prohibits taking adverse employment actions solely because of pregnancy or treating covered workers differently from others with temporary health issues.

Louisiana’s Employment Discrimination Law may also provide a cause of action to your client aggrieved by any of these types of discrimination.3  The law generally covers employment agencies, labor organizations, and public and private employers with 20 or more employees, but there are broad exemptions. There is no provision prohibiting retaliation, and plaintiffs found to have pursued “frivolous” claims may be held liable for damages, costs, and attorney fees. Administration exhaustion is not required, and the 1-year prescriptive period is subject to suspension for limited periods of investigation by the EEOC or LCHR.

In the case of “pregnancy, childbirth and related medical conditions,” the statute covers public and larger private employers and prohibits employment discrimination because of these conditions unless based on a “bona fide occupational qualification.” It also requires state employers to provide leave for up to four months.

• 142 U.S.C. § 2000e, et seq. For a description of the coverage areas of the laws enforced by the EEOC, see Coverage U.S. Equal Emp’t Opportunity Comm’n.
• 242 U.S.C. §§ 1981, 1983.
• 3La. R.S. 23:301, et seq.

The Age Discrimination in Employment Act (ADEA) prohibits discrimination by covered employers (generally, those employing 20 or more workers) against employees 40 and over in any aspect of employment and prohibits retaliation.1  Enforcement lies with the EEOC. If your client’s employer offered a severance package with a claim-waiver provision, it might have run afoul of this law’s waiting period and other requirements designed to help older workers avoid discrimination. Administrative filing is required at least 60 days before filing suit, but a plaintiff need not wait the EEOC’s usual “right to sue” notice to issue before filing suit. Upon issuance, however, the 90-day period to bring a suit begins to run. Louisiana’s Employment Discrimination Law may also provide a cause of action.

• 129 U.S.C. § 621, et seq.

Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits discrimination by covered employers (generally, those employing 15 or more) in any aspect of employment against qualified individuals on the basis of a qualified disability.1  A covered individual is one who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. If a disability and need for accommodation is obvious, an employee need not expressly or formally request accommodation. The law defines in some instances what is or is not reasonable accommodation, but generally it is a highly specific and individualized fact inquiry, focusing on the particular circumstances of the employee and employer. Title I of the ADA is enforced by the EEOC. Private lawsuits are authorized, but administrative exhaustion is required.

The Rehabilitation Act of 1973 includes provisions similar to the ADA and covers most employers receiving federal assistance.2  Louisiana’s Employment Discrimination Law provides a cause of action that is very similar to that available under the ADA.3

• 142 U.S.C. § 12102, et seq. For additional discussion on working with clients with disabilities and ensuring their access to the courts, see Court Access for Individuals with Disabilities.
• 229 U.S.C. § 701, et seq.
• 3La. R.S. 23:321, et seq.

In cases of national origin or race discrimination, certain provisions of the Immigration Reform and Control Act of 1986 (“IRCA”) may also apply. IRCA prohibits employers from hiring persons who are not legally entitled to work in the U.S. and requires that employers verify employees’ eligibility and identity. IRCA also prohibits covered employers from discriminating in recruiting or referring for a fee, hiring, or firing based on national origin and/or citizenship status against those who may legally work in the United States.1  Protection is given to U.S. citizens and to noncitizens with work authorization. Employer actions that may run afoul of this law include basing employment decisions on appearance, accent, name, or other characteristics suggestive of national origin rather than work-related criteria and treating workers differently in any aspect of the hiring or documentation process. IRCA complaints must be filed with the Department of Justice’s Office of Special Counsel (OSC) (unless brought before the EEOC within the scope of a Title VII charge) within 180 days of the unlawful action. OSC will investigate and decide whether to bring the complaint before a special administrative law judge. If OSC declines, the complainant may do so.

• 18 U.S.C. § 1324b.

Both federal and state statutes prohibit discrimination against workers for belonging to or refusing to belong to a labor union.1  Activities that can be characterized as organizing are also protected.

• 129 U.S.C. § 141, et seq.; La. R.S. 23:881, et seq.; La. R.S. 23:981, et seq. (“Right to Work” law).

Employees in unionized workplaces may have rights enforceable under the union’s collective bargaining agreement, which usually specifies that termination must be for cause and provides a process to challenge adverse employment decisions. Such agreements will usually require arbitration of unresolved grievances. Clients may find legal representation through the union or through the private bar. If your client’s complaints include actions by the union as well as the employer, advise them about the union’s duty of fair representation and perhaps refer the client to the National Labor Relations Board to make a complaint.1

• 1See Nat’l Lab. Relations Bd.

In a limited-duration employment contract, the parties agree to be bound for a certain period of time during which neither party may end the relationship without cause and reasonable notice must be given prior to termination.1  These relationships may be found in public as well as private employment. While a contract may be oral or written, any ambiguity will be construed in favor of employment at-will. An unjustly discharged employee may seek recovery of all salaries due for the term’s remainder. An action for discharge has a 10-year prescriptive period.2

• 1La. C.C. arts. 2746–2750.
• 2La. C.C. art. 3499.

The public policy expressed in the “Abuse of Right” doctrine has been very occasionally argued in wrongful discharge cases. It has gained no traction in Louisiana, although conceivably in some highly egregious circumstances it might have a chance. Potential ways to argue this exception include: (1) the exercise of rights exclusively for the purpose of harming another or with the predominant motive to cause harm; (2) exercise of rights without serious or legitimate reasons; (3) the use of the right in violation of moral rules, good faith, or fundamental fairness; or (4) the exercise of the right for a purpose other than that for which it was granted.