Home > In The News > Articles > Statutes of Limitations for Discrimination Claims

Article Summary

Statutes of limitations can be confusing, but they're crucial to understand if you're facing workplace discrimination, retaliation, or harassment. Your deadline to take legal action can vary widely based on the type of discrimination you suffered; on the law you wish to invoke; and on the identity of your employer. We've gathered the most common anti-discrimination laws, and the statute of limitations for each.

This article by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on November 13, 2017.

Statutes of Limitations for Discrimination Claims

By R. Scott Oswald

What is a statute of limitations? Simply put, it is the prescribed deadline for taking a particular legal action — most often, for filing a complaint. If you don’t meet the deadline, you have likely forfeited your right to take the action. Sometimes a court will consider special circumstances, but generally that’s a long shot.

Below are the statutes of limitations for the most commonly used federal anti-discrimination laws. It’s not an exhaustive list, but it covers a lot of ground. Remember: If a deadline falls on a weekend or a federal holiday, you can file your claim on the next business day.

If you have any doubts about statutes of limitations — and, frankly, even if you don’t — it’s best to check with an attorney. This list is not a substitute for individualized legal advice.

QUICK LINKS TO DEADLINES FOR EACH LAW

Title VII of the Civil Rights Act of 1964

The first comprehensive civil-rights law to protect employees, Title VII provides a template for several other federal anti-discrimination statutes that are enforced by the U.S. Equal Employment Opportunity Commission.

Type of discrimination covered

Discrimination based on race, color, religion, sex and national origin, plus (via the Pregnancy Discrimination Act of 1973) pregnancy, childbirth, and related medical conditions.

Forbids retaliation?

Yes, for retaliation based on a complaint of discrimination; filing of a discrimination charge; or participation in a discrimination investigation or lawsuit.

Forbids harassment?

Yes, when harassing behavior explicitly or implicitly affects an individual’s employment; unreasonably interferes with an individual’s work performance; or creates an intimidating, hostile, or offensive work environment.

Type of employer covered

Private-sector and non-federal government employers with 15 or more employees; all federal government employers.

How to start legal action

Federal employees: Contact your agency’s Equal Employment Opportunity (EEO) Counselor.
All others: File a charge with the Equal Employment Opportunity Commission (EEOC).

Statute of limitations (deadline for initial action)

Federal employees: 45 days from last incident.
All others: 180 days from last incident (may be extended to 300 days in some jurisdictions).

What happens after initial action?

In general, you can expect an EEOC investigation and some conclusion about the validity of your claim. Then you will face a decision about whether to pursue the matter further.

Federal employees: Based on your informal complaint, your agency’s EEO Counselor may attempt to resolve the matter internally. If that fails, the EEO Counselor will issue a Notice of Right to File, after which you should file a formal complaint with the EEOC within 15 days. The EEOC will conduct an investigation, which should not last more than 180 days, then offer you a hearing before it issues its decision on whether discrimination occurred. You can appeal the EEOC’s decision, and so can your agency. At the end of the process you may accept the outcome or continue with a claim in federal court. Also, if the EEOC fails to meet certain deadlines along the way, you may quit the process and file a lawsuit. (This is fairly common.)
All others: The EEOC will open an investigation and notify your employer within 10 days. The agency may promote a mediated settlement, but that’s voluntary for both parties. Based on its investigation, the EEOC may issue a Letter of Determination finding reasonable cause to believe that discrimination has occurred. In such a case, the agency will invite both parties to join the agency in an informal process known as “conciliation.” If conciliation fails to resolve matters, the EEOC may opt to file a lawsuit on your behalf in federal court — which is fairly rare — or it may issue you a Notice of Right to Sue, in which case you have 90 days to file your own lawsuit. Alternatively, if the EEOC’s investigator can’t conclude that discrimination likely occurred, the agency will issue a Dismissal and Notice of Rights — which also allows you to file a lawsuit within 90 days.

Age Discrimination in Employment Act

Signed into law in 1967, this statute works broadly the same as Title VII (above).

Type of discrimination covered

Discrimination based on age, if the victim is 40 or older.

Forbids retaliation?

Yes, same basic standard as Title VII above (view).

Forbids harassment?

Yes, same basic standard as Title VII above (view).

Type of employer covered

Private-sector and non-federal government employers with 20 or more employees; all federal government employers.

How to start legal action

Federal employees: Contact your agency’s EEO Counselor.
All others: File a charge with the EEOC.

Statute of limitations (deadline for initial action)

Federal employees: 45 days from last incident.
All others: 180 days from last incident (may be extended to 300 days in some jurisdictions).

What happens after initial action?

Same basic process as Title VII above (view).

Title I of the Americans with Disabilities Act

The ADA works broadly the same as Title VII (above) in its anti-discrimination provisions. In addition, it requires certain employers to provide reasonable accommodation of disabled employees and, in the case of businesses that serve the public, to provide access to all. It became law in 1990.

Type of discrimination covered

Discrimination based on regarding an employee as having a physical or mental impairment, or based on an employee’s record of being so impaired.

Forbids retaliation?

Yes, same basic standard as Title VII above (view).

Forbids harassment?

Yes, same basic standard as Title VII above (view).

Type of employer covered

Private-sector and non-federal government employers with 15 or more employees. Federal government employers are not covered.

How to start legal action

Federal employees: No action available — proceed under the Rehabilitation Act (view).
All others: File a charge with the EEOC.

Statute of limitations (deadline for initial action)

Federal employees: No action available.
All others: 180 days from last incident (may be extended to 300 days in some jurisdictions).

What happens after initial action?

Same basic process as Title VII above, but only for non-federal employees (view).

Equal Pay Act

The Equal Pay Act was signed into law in 1963. Unlike Title VII and similar laws, it does not require victims of discrimination to pass through the EEOC, which was created after the statute was passed. Instead, it is enforced via the regular judicial system. Victims of sex-based pay discrimination may choose to file claims under both the EPA and Title VII.

Type of discrimination covered

Wage discrimination between men and women who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions.

Forbids retaliation?

Yes, same basic standard as Title VII above (view).

Forbids harassment?

Forbids retaliatory harassment — that is, harassment based on an action protected under this law (such as a complaint of discrimination).

Type of employer covered

All employers.

How to start legal action

File a complaint in federal or state court.

Statute of limitations (deadline for initial action)

Two years from receipt of the last discriminatory paycheck.

What happens after initial action?

The process will follow regular civil procedure, possibly resulting in a trial.

Section 1981 of the Civil Rights Act of 1866

Section 1981 specifically targets race discrimination. Like the Equal Pay Act, it is enforced via the regular judicial system. Victims of workplace racism may sue under both Section 1981 and Title VII.

Type of discrimination covered

Discrimination based on race.

Forbids retaliation?

Yes. Although the statute is not explicit, the Supreme Court held in CBOCS West, Inc. v. Humphries that employees may bring retaliation claims under Section 1981.

Forbids harassment?

Yes, the Civil Rights Act of 1991 amended Section 1981 to make employers liable for racial harassment that affects working conditions.

Type of employer covered

All employers except the federal government.

How to start legal action

Federal employees: No action available — proceed under Title VII (view).
All others: File a complaint in federal or state court.

Statute of limitations (deadline for initial action)

Federal employees: No action available.
All others: Four years from the last incident.

What happens after initial action?

The process will follow regular civil procedure, possibly resulting in a trial.

Section 501 of the Rehabilitation Act

The Rehabilitation Act of 1973 provides similar rights for federal employees as the ADA provides for non-federal employees. The two laws are not identical, but their anti-discrimination provisions have mostly been harmonized.

Type of discrimination covered

Discrimination based on regarding an employee as having a physical or mental impairment, or based on an employee’s record of being so impaired.

Forbids retaliation?

Yes, same basic standard as Title VII above (view).

Forbids harassment?

Forbids retaliatory harassment — that is, harassment based on an action protected under this law (such as a complaint of discrimination).

Type of employer covered

Federal government.

How to start legal action

Federal employees: Contact your agency’s EEO Counselor.

All others: No action available — proceed under the ADA (view).

Statute of limitations (deadline for initial action)

Federal employees: 45 days from last incident.

All others: No action available.

What happens after initial action?

Same basic process as Title VII above, but only for federal employees (view).

Uniformed Services Employment and Reemployment Rights Act

USERRA is one of two federal statutes that prohibit workplace discrimination against veterans; the other, the Vietnam Era Veterans’ Readjustment Assistance Act, isn’t limited to Vietnam vets but is still substantially narrower than USERRA and is used less often.

Type of discrimination covered

Discrimination based on past, present, or future qualified military service.

Forbids retaliation?

Yes — no reprisals allowed for actions protected under USERRA (such as filing a complaint).

Forbids harassment?

Yes, USERRA was amended in 1991 to recognize claims of harassment.

Type of employer covered

All employers.

How to start legal action

Federal employees: Either file a complaint with the Veterans’ Employment and Training Service (VETS) at the U.S. Department of Labor, or file a complaint directly before the Merit Systems Protection Board (MSPB).
All others: Either file a complaint with VETS, or file a complaint directly in federal or state court.

Note: Unlike the EEOC with many other discrimination claims, VETS is not a necessary step in the USERRA process.

Statute of limitations (deadline for initial action)

USERRA is an unusual law: It does not have a statute of limitations — not even the default “catch-all” that usually applies when no deadline is specified. It is possible, however, for courts to invoke a doctrine known as laches to dismiss claims that are delayed excessively for no good reason. As a result, it’s best to act as soon as possible.

What happens after initial action?

For complaints filed directly with the MSPB or in a federal or state court, the regular procedure for that venue will apply.

If a victim of discrimination chooses to involve VETS, VETS will investigate the case and try to resolve it. If that fails, victims are entitled to request a referral to government lawyers who will evaluate each case and decide whether to pursue it at taxpayer expense. Federal employees are referred to the U.S. Office of Special Counsel, which may bring cases before the Merit Systems Protection Board. Other employees are referred to the U.S. Department of Justice, which may bring cases in federal court.

Even if they get nowhere with VETS and their government referral, victims still can continue or appeal their own cases in the appropriate forum.

Family and Medical Leave Act

The FMLA requires most larger employers to provide employees with leave for specific situations, and it now includes some special rules for military families. Its accompanying anti-discrimination provisions, however, aren’t enforceable against the federal government.

Type of discrimination covered

Discrimination based on the exercise of rights under the FMLA.

Forbids retaliation?

Yes, for retaliation based on taking FMLA leave, requesting or participating in an investigation, or opposing workplace practices that violate the FMLA.

Forbids harassment?

The FMLA prohibits interference with any employee’s ability to take statutory leave, so harassment is prohibited to the extent that it constitutes such interference.

Type of employer covered

All private-sector employers with 50 or more employees; all public-sector employers.

How to start legal action

Federal employees: No action available — proceed under a different law, such as the Rehabilitation Act (view), if possible. Employees covered by a collective bargaining agreement may have other options.
All others: Either file a complaint with the Wage and Hour Division of the U.S. Department of Labor (seldom effective), or file a complaint directly in federal or state court.

Note: As with VETS and USERRA, the FMLA’s individual right of action doesn’t depend on going through the Department of Labor.

Statute of limitations (deadline for initial action)

Federal employees: No action available.
All others: For an action in court, the deadline is two years from the last incident — or three years, if the employer is found to have been “willful” in its violation. For a complaint before the Wage and Hour Division, the only requirement is filing “within a reasonable time,” which prudent employees will interpret as “without delay.”

What happens after initial action?

For complaints filed in a federal or state court, the regular procedure for that venue will apply.

If a victim of discrimination chooses to involve the Department of Labor, an investigation will follow. The department may hold administrative hearings or decide to litigate in federal court on behalf of the employee, although that is rare in FMLA cases.

Genetic Information Nondiscrimination Act

GINA was passed in 2008 and is rarely litigated — so far. Its provisions generally follow the pattern of Title VII (above).

Type of discrimination covered

Discrimination based on genetic information.

Forbids retaliation?

Yes, same basic standard as Title VII above (view).

Forbids harassment?

Yes, same basic standard as Title VII above (view).

Type of employer covered

Private-sector and non-federal government employers with 15 or more employees; all federal government employers.

How to start legal action

Federal employees: Contact your agency’s EEO Counselor.
All others: File a charge with the EEOC.

Statute of limitations (deadline for initial action)

Federal employees: 45 days from last incident.
All others: 180 days from last incident (may be extended to 300 days in some jurisdictions).

What happens after initial action?

Same basic process as Title VII above (view).

Executive Order 11246, as amended

Executive Order 11246, originally signed in 1965, conditions the awarding of federal dollars on an enforceable pledge by contractors not to discriminate on grounds that have expanded over 50 years. It’s not a law, but its penalties — including possible ineligibility for federal contracts — make it just as effective. Because it doesn’t provide a right to sue, it’s rarely used by individual employees, but it’s the only federal anti-discrimination tool to explicitly prohibit private-sector bias based on sexual orientation and gender identity. (The EEOC and most courts believe that Title VII implicitly prohibits such bias via its ban on sex discrimination.)

Type of discrimination covered

Discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin.

Forbids retaliation?

Explicitly forbids retaliation for inquiring about, discussing, or disclosing the pay of self or others. It may be viable to claim other types of retaliation as a form of discrimination.

Forbids harassment?

Not addressed explicitly, but it may be viable to claim harassment as a form of discrimination.

Type of employer covered

About 500,000 companies that receive money via federal contracts. Some religious companies are exempted from enforcement with regard to religious bias, but not other types of discrimination. The U.S. Secretary of Labor can make certain other exemptions on a case-by-case basis.

How to start legal action

File a complaint with the Office of Federal Contract Compliance Programs (OFCCP) at the U.S. Department of Labor.

Statute of limitations (deadline for initial action)

180 days from the date of the alleged discrimination.

What happens after initial action?

First the OFCCP will determine whether the complaint would be better pursued by the EEOC under Title VII (view); if so, it will refer the case. If the OFCCP keeps the case, it conducts an evaluation and tries to resolve the matter via an informal “compliance conference” with the accused employer. If that doesn’t work, it may refer the case either to the Department of Labor for administrative hearings, or to the Department of Justice for litigation in federal court. Because these proceedings amount, at bottom, to a dispute between the government and its contractor, any benefit to individual employees will be hit-or-miss. Still, there may be a measure of vindication.