Checklist · Labor and Employment

Filing and Pursuing an Employment Discrimination Charge: A Practical Checklist

42 U.S.C. § 1981

Type: Checklist
Jurisdiction: National
Date: 2024-07-26
Topic: Labor and Employment

This checklist runs an employment discrimination matter from the first suspicion through resolution, in nine phases, beginning with the calendar rather than the merits. Phase 1 establishes the deadlines, which end more claims than any question of proof, and identifies the section 1981 route that has no charge requirement at all. Phase 2 preserves the evidence that exists only before termination, with cautions about company documents and recording law. Phase 3 covers the internal complaint, which both creates protected activity for retaliation and defeats the Faragher-Ellerth affirmative defense in a single act. Phase 4 drafts the charge broadly enough to preserve every claim, since a lawsuit is limited to what the charge raised or what is reasonably related to it. Phase 5 covers the agency process, the position statement that locks the employer into an explanation, and mediation, and Phase 6 builds the pretext record from shifting explanations, comparators, policy deviations, and timing. Phase 7 covers accommodation requests and the interactive process that is itself the obligation. Phase 8 covers the right to sue letter and the ninety-day window that kills nearly as many claims as the charge deadline, and Phase 9 covers damages, mitigation, and the separation agreement formalities that void a defective age waiver. Four model documents, a deadline worksheet, a five-minute intake, and a ranked failure-mode list are included.

Filing and Pursuing an Employment Discrimination Charge: A Practical Checklist

Labor and Employment > Discrimination | Published 26 July 2024 - Updated 14 November 2025 | UpLaw - uplaw.us

Phase 1 is a calendar, not an argument. Do it before anything else, because the two deadlines in this checklist end more claims than every substantive defense combined.

Keywords: charge deadline, evidence preservation, internal complaint, charge drafting, position statement, pretext, right to sue, mitigation

How to use this checklist

Nine phases. Each has - [ ] items and a Why it matters, and the traps note. A fictional case — a promotion denied in March, a shift change in June, a first write-up in September, a termination in January — runs throughout.

Doctrine is in Employment Discrimination Charges: A Comprehensive Guide to Title VII, the ADEA, the ADA, and the EEOC Process. The narrative is Three Hundred Days: The Deadline That Ends Most Discrimination Cases Before They Start. The materials are in The Employment Discrimination Charge Toolkit.

Phase 1 — The calendar, first

[ ] Write down the date of each adverse act and the date you were told about it.
[ ] Determine whether your state is a deferral state — 300 days rather than 180.
[ ] Calculate the deadline for each discrete act separately.
[ ] Identify which acts are already time-barred as discrete claims.
[ ] Ask whether a hostile work environment theory reaches back further.
[ ] For a race claim, check 42 U.S.C. § 1981 — no charge requirement, much longer period.
[ ] For pay, note each paycheck restarts the clock — 42 U.S.C. § 2000e-5.
[ ] If a federal employee, contact a counselor within 45 days — 42 U.S.C. § 2000e-16, 29 C.F.R. part 1614.
[ ] Check the state fair employment deadline, frequently a year or more.
[ ] Write every deadline on a calendar.

Why it matters, and the traps. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) makes each discrete act — termination, failure to promote, denial of transfer, demotion — separately actionable with its own clock. An act outside the window is barred even if related to timely acts, though it remains background evidence.

Hostile environment claims are different: if any contributing act falls within the window, the entire period may be considered.

Worked example. The March promotion is time-barred as a discrete claim by February. It survives as background evidence — and it is alive under 42 U.S.C. § 1981 if the claim is racial.

Phase 2 — Preserve the evidence

[ ] Start a dated log: every incident, who was present, what was said, your response — written the same day.
[ ] Collect performance reviews, especially those predating any complaint.
[ ] Collect the employee handbook and any anti-harassment or complaint policy.
[ ] Note what emails and messages exist — but consider carefully before taking company documents.
[ ] Identify comparators: who else did the same thing, and what happened to them.
[ ] Keep your job description and any change to it.
[ ] Request your personnel file — many states require production on request.
[ ] Note whether any prior complaints were made against the same manager.
[ ] Check your state's recording law before recording anything.

Why it matters, and the traps. Contemporaneous notes are evidence; reconstructions written a year later are testimony, and the difference is substantial.

Taking confidential company documents can become a defense and has produced dismissals. Note what exists rather than removing it wholesale.

Recording is lawful with one party's consent in some states and criminal without all parties' consent in others.

Phase 3 — The internal complaint

[ ] Read the complaint procedure in the handbook and follow it.
[ ] Complain in writing, dated.
[ ] Identify the protected characteristic expressly — "I believe this is because of my [characteristic]."
[ ] Describe specific incidents with dates.
[ ] Send it to a channel the policy designates, not only to the person involved.
[ ] Keep a copy outside the employer's systems.
[ ] Note any response, and any change in treatment afterward.
[ ] Cooperate with any investigation and keep your own record of it.

Why it matters, and the traps. Two things turn on this.

It creates protected activity for a retaliation claim under 42 U.S.C. § 2000e-3 and 42 U.S.C. § 12203 — and the underlying discrimination claim need not succeed for retaliation to.

It defeats the Faragher–Ellerth defense, under which an employer that exercised reasonable care to prevent and correct harassment escapes liability if the employee unreasonably failed to use the procedure.

Say the characteristic out loud. A complaint about being "treated unfairly" may not qualify as opposition to a practice made unlawful.

Phase 4 — Draft and file the charge

[ ] File with the enforcement agency or the state fair employment agency.
[ ] Confirm dual filing occurred; do not assume.
[ ] List every protected characteristic that may apply — race, color, religion, sex, national origin, age, disability, genetic information.
[ ] Always include retaliation if any complaint preceded an adverse action.
[ ] Describe each adverse act with its date.
[ ] Describe the pattern if a hostile environment theory applies.
[ ] Identify comparators by name where known.
[ ] Ensure the charge is verified (signed under penalty of perjury).
[ ] If near a deadline, file an intake questionnaire describing the claim and verify it afterward.
[ ] Keep the date-stamped copy.

Why it matters, and the traps. A lawsuit is limited to claims raised in the charge or reasonably related to and growing out of the investigation. A charge alleging only race, where the facts also support age and retaliation, can foreclose the unmentioned claims permanently.

Draft broadly. Narrow later.

Filing does not commit you to litigation, does not require a lawyer, and does not prevent internal resolution — it preserves an option that otherwise expires silently.

Phase 5 — The agency process

[ ] Expect the employer to receive notice and file a position statement.
[ ] Request a copy and the opportunity to respond.
[ ] Compare it against what you were told at the time.
[ ] Consider mediation if offered — voluntary, confidential, frequently productive early.
[ ] Respond fully to requests for information.
[ ] Identify witnesses for the investigator.
[ ] Expect a long timeline — a year or more is common.
[ ] Understand the outcomes: cause finding, no-cause, conciliation, dismissal.
[ ] A no-cause finding does not end the claim.

Why it matters, and the traps. The position statement is the single most valuable document you will obtain during the agency process. It locks the employer into an explanation early, and any later inconsistency becomes the shifting-explanations pretext evidence that wins cases.

Mediation before positions harden resolves many of these matters — see Preparing for and Attending a Mediation: A Practical Checklist.

Phase 6 — Build the pretext record

[ ] Write down every explanation you were given, with the date and speaker.
[ ] Compare the termination explanation to the position statement.
[ ] Identify comparators treated more favorably for the same conduct.
[ ] Identify deviations from policy — skipped progressive discipline, criteria added late, a position filled without posting.
[ ] Note the timing of any discipline relative to your complaint.
[ ] Identify facts showing the stated reason is factually untrue.
[ ] Collect statistical information where a pattern exists.
[ ] Preserve any direct statement tying a decision to a characteristic.

Why it matters, and the traps. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the prima facie case is light and the employer's burden is production only. Pretext is where cases are won.

Shifting explanations are the strongest pretext evidence there is.

Pretext is not an argument that the employer was wrong. An employer may make a bad decision for a lawful reason.

Causation differs by statute. Age requires but-for causation under Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009); Title VII permits a motivating-factor theory.

Phase 7 — Accommodation, if disability is involved

[ ] Make the request — no magic words required.
[ ] Put it in writing and date it.
[ ] Describe the limitation and what would help; you need not disclose a full diagnosis.
[ ] Ask for the interactive process expressly.
[ ] Provide reasonable medical documentation; object if the request is excessive.
[ ] Propose specific accommodations: schedule change, leave, reassignment to a vacant position, equipment, remote work, modified policy.
[ ] Keep notes of every discussion, with dates.
[ ] If refused, ask for the reason in writing.
[ ] Note that leave beyond an entitlement can itself be a reasonable accommodation — 29 U.S.C. § 2612, 29 C.F.R. part 825.
[ ] For religious practice, the parallel duty is at 42 U.S.C. § 2000e and 29 C.F.R. part 1605.

Why it matters, and the traps. 42 U.S.C. § 12112 and 29 C.F.R. part 1630 make failure to accommodate a known limitation discrimination in itself.

The process is the obligation. An employer that never engages violates the statute regardless of whether an accommodation would ultimately have been reasonable.

A rigid maximum-leave policy applied without individualized assessment is a recurring source of liability.

Phase 8 — Right to sue

[ ] Understand you may request a notice after 180 days — 42 U.S.C. § 2000e-5.
[ ] The notice starts a 90-day clock to file suit.
[ ] Write that date on a calendar the day the notice arrives.
[ ] For age claims, note suit may be filed 60 days after the charge without a notice — 29 U.S.C. § 626.
[ ] Check for an arbitration agreement in onboarding paperwork before filing.
[ ] Plead every theory: Title VII, 42 U.S.C. § 1981, 29 U.S.C. § 623, 42 U.S.C. § 12112, retaliation, and state analogues.
[ ] Confirm the complaint stays within the scope of the charge.

Why it matters, and the traps. The 90-day window kills nearly as many claims as the charge deadline — because the notice arrives by mail months after anyone was actively thinking about the case, and it is unforgiving.

Phase 9 — Damages, mitigation, and agreements

[ ] Keep a job search log from day one — mitigation reduces back pay and the log is the proof.
[ ] Track lost wages and benefits.
[ ] Document emotional distress contemporaneously.
[ ] Note compensatory and punitive damages are capped by employer size — 42 U.S.C. § 1981a.
[ ] Note the caps do not apply to back pay, front pay, or 42 U.S.C. § 1981 claims.
[ ] For age, note liquidated damages for willfulness and no compensatory or punitive damages.
[ ] Before signing any separation agreement, check the 29 U.S.C. § 626 formalities if age is involved: written, specific reference to age claims, consideration beyond what is owed, advice to consult counsel, 21 days to consider, 7-day revocation.
[ ] In a group termination, confirm the required disclosure of ages and titles selected and not selected.
[ ] Negotiate non-monetary terms: neutral reference, separation characterization, confidentiality carve-outs.
[ ] Confirm the tax allocation between wages and non-wage damages.

Why it matters, and the traps. A defective age waiver is void — and the employee keeps both the severance and the claim.

A release cannot bar filing a charge, though it can bar recovery.

Model documents

A. Internal written complaint

"I am writing to report conduct I believe violates company policy and the law. On [dates], [describe specific incidents with who, what, and who was present]. I believe this treatment is because of my [protected characteristic]. I am submitting this under the complaint procedure in the handbook at [section]. Please confirm receipt and advise how the matter will be investigated."

B. Charge narrative

"I am [protected characteristics]. I was employed by [employer] as [position] from [dates]. On [date] I was [adverse act]. [Comparator], who is [outside the protected class], [was treated differently — describe]. On [date] I complained to [name] that [conduct] was discriminatory. On [date], [N] days later, I was [adverse act]. I believe I was discriminated against because of my [characteristics] and retaliated against for complaining, in violation of [statutes]. The discrimination is continuing."

C. Accommodation request

"I have a medical condition that limits [function]. I am requesting a reasonable accommodation and would like to begin the interactive process. Specifically, [describe what would help]. I am happy to provide documentation from my health care provider of the disability-related need. Please respond in writing within [N] days, and let me know if you would like to discuss alternatives."

D. Personnel file request

"Under [state statute], I request a copy of my complete personnel file, including performance evaluations, disciplinary records, attendance records, complaints, investigation records concerning me, and any documents relied upon in the decision to [adverse act]. Please provide these within the period the statute allows."

Failure modes, ranked

Missing the 180- or 300-day charge deadline.
Missing the 90-day right-to-sue window.
Waiting to see whether things improve — exactly what the clock punishes.
Drafting the charge too narrowly.
Never complaining internally, handing over the Faragher–Ellerth defense.
Complaining without naming the protected characteristic.
Pleading only Title VII where 42 U.S.C. § 1981 offers more.
Not requesting the position statement.
Treating discrete acts as a continuing violation.
Failing to mitigate or to log the job search.
Signing a separation agreement without checking the age waiver formalities.
Recording conversations without checking state law.

The deadline worksheet

Fill this in first, before anything else in this checklist.

Adverse act	Date it happened	Date I was told	180-day deadline	300-day deadline	Timely?

Then answer:

[ ] Is my state a deferral state? → 300 days ___
[ ] Any act barred as a discrete claim but usable as background evidence? ___
[ ] Does a hostile environment theory reach back further? ___
[ ] Is this a race claim? → 42 U.S.C. § 1981, no charge required, much longer period ___
[ ] Is this a pay claim? → each paycheck restarts the clock ___
[ ] Federal employee? → 45 days to contact a counselor ___
[ ] What does the state statute allow? ___
[ ] Right-to-sue 90-day date, once the notice arrives: ___

The two boxes that matter most are the 300-day column and the last row. Between them they account for more lost claims than every substantive defense combined.

The worked timeline

Facts. Promotion denied in March; the manager remarks that the client base "responds better to a certain profile." Shift change in June. First written warning in eleven years in September. Termination in January. Consultation in February.

Act	Date	Discrete-act status in February
Failure to promote	March	Time-barred at 300 days — background evidence only
Shift change	June	Timely
Written warning	September	Timely
Termination	January	Timely

What survives, and how.

The hostile environment theory reaches the entire period under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), because at least one contributing act falls inside the window.

The 42 U.S.C. § 1981 claim revives the March promotion entirely — no charge requirement, a far longer period, and no damages caps. Identifying this is the single most valuable thing done in the first meeting.

The retaliation claim is the strongest. Eleven unblemished years, a documented complaint, a first warning two months later, a termination four months after that. Temporal proximity does most of the causal work.

What he should have done in March: written down the date and the remark in his own words, and asked what the deadline was. The claim was strong all along. Only the calendar was against him.

The five-minute intake

When exactly were you told? — for each act.
What state do you work in? — deferral or not.
What characteristic do you think this is about? — and is it race, which opens § 1981.
Did you complain? In writing? To whom? When? — protected activity and the affirmative defense.
What reason did they give? — and has it changed since?
Who else did the same thing, and what happened to them? — comparators.
What does your performance record look like before the complaint?
Did you sign anything at hiring? — arbitration.
Have you signed anything since? — release.
Are you looking for work, and are you writing it down? — mitigation.

Questions 1, 3, and 4 decide whether there is a case. Question 5 decides whether it wins.

Three sentences worth memorizing

"When exactly did they tell you?" — the clock runs from communication, not from consequences.

"Put the complaint in writing, name the characteristic, and keep a copy at home." — it creates protected activity and defeats the affirmative defense in a single act.

"What did they say the reason was — and what did they say it was the second time?" — shifting explanations are the strongest pretext evidence there is.

Filing and Pursuing an Employment Discrimination Charge: A Practical Checklist

How to use this checklist

Phase 1 — The calendar, first

Phase 2 — Preserve the evidence

Phase 3 — The internal complaint

Phase 4 — Draft and file the charge

Phase 5 — The agency process

Phase 6 — Build the pretext record

Phase 7 — Accommodation, if disability is involved

Phase 8 — Right to sue

Phase 9 — Damages, mitigation, and agreements

Model documents

A. Internal written complaint

B. Charge narrative

C. Accommodation request

D. Personnel file request

Failure modes, ranked

The deadline worksheet

The worked timeline

The five-minute intake

Three sentences worth memorizing

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