A person who wants to make a discrimination or harassment claim under most federal protective statutes must first exhaust their administrative remedies by filing a complaint with the EEOC. As you apparently know, you can request the EEOC to either investigate your claims which it will do and decide whether it will prosecute your claim, or you can request an immediate right to sue letter. Procuring that right to sue letter is proof that you exhausted your administrative remedies with the EEOC.
The purported purpose for the filing of an administrative complaint is to put the employer and any other possible defendants on notice of the claim. A failure to include a claim in the EEOC complaint can result in a finding that you failed to exhaust your administrative remedy as to that claim. However, there are several factors that must be considered on this issue.
First, you are not required to state all of your evidence in the EEOC complaint. You merely need to identify the wrongdoers and the claims you are making (i.e. gender discrimination, race discrimination, harassment based on religious affiliation, etc.) All of the details of those claims need not be in the complaint in order to allow you to use them to prove your case at trial.
Second, there is a rule of substantial compliance with EEOC complaints whereby if you put enough information in the complaint such that a reasonable investigation would disclose the omitted claim, it is still considered enough to exhaust the administrative remedy as to that claim. For instance, if you indicate racial harassment but don't also include a racial discrimination claim, but in your explanation of the racial harassment claim you disclose facts that would lead any reasonable investigator to find evidence of racial discrimination, a court can find that you substantially complied with the exhaustion requirement.
Third, unless the statutory time period has passed to file an EEOC complaint about the omitted claim, you can simply file another EEOC complaint with that claim in it. Unfortunately, under most federal discrimination statutes the time period is very short to file complaints with the EEOC.
Finally, there may be some remedies available to you that do not require the filing of an EEOC complaint to exhaust administrative remedies. For instance if you have a claim for race discrimination you can proceed under Section 1981 of the Civil Rights Act of 1866. You do not get some of the heightened remedies available under Title VII, but it is far better than no claim at all.
As you can probably tell, this is a very complicated area of law and I do not have enough space to explain all the ins and outs of the law on this. You should really consult with an attorney well-versed in these types of claims right away. That attorney can look at all the facts and circumstances of your claim and give you far better advice than anyone on this site can do with limited facts and space.
One final warning: You have a very short time period to file a lawsuit after getting a right to sue letter from the EEOC. If you do not file a complaint within that time period, you lose your rights to sue. Please hurry.
I wish you the best of luck.
Pedersen Heck McQueen, APLC is an employee rights law firm assisting employees in all Southern California counties.
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If you intend to sue for things that could result in an award of money that are not covered by discrimination laws, then you may well need to put the governmental agency on notice by filing an administrative claim under the appropriate tort claims act. Statutes of limitations for such claims can be short and the laws can be confusing. I recommend that you see an employment lawyer immediately, lest you forfeit rights without consciously doing so.
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