Toolkit · Labor and Employment

The Employment Discrimination Charge Toolkit

42 U.S.C. § 2000

Type
Toolkit
Jurisdiction
National
Date
2024-02-25
Topic
Labor and Employment

This toolkit assembles the working materials for an employment discrimination matter. It contains the authority map, a deadline worksheet, a statute comparison table, an evidence preservation list, an internal complaint template, a charge drafting guide, a pretext evidence inventory, an accommodation request module, a damages and caps reference, a separation agreement audit, an employer compliance module, and a five-minute intake. It is organized for retrieval rather than reading. The modules cover the statutes and their differing employer thresholds, causation standards, and damages caps, along with the Morgan distinction between discrete acts and hostile environment claims that decides what survives the calendar. They also cover the section 1981 route that carries no charge requirement and no damages caps, the proof frameworks and what pretext actually looks like in a file, disparate impact, and the Faragher-Ellerth affirmative defense that decides harassment cases. Further modules address retaliation and its broader adverse action standard, disability accommodation and the interactive process that is itself the obligation, and the agency process through the ninety-day right to sue window.

The Employment Discrimination Charge Toolkit

Labor and Employment > Discrimination | Published 25 February 2024 - Updated 17 February 2026 | UpLaw - uplaw.us

Module 2 is a worksheet with dates in it. Fill it in before reading anything else in this toolkit, because two deadlines end more claims than every substantive defense combined.

Keywords: deadline worksheet, Morgan, § 1981, pretext, comparators, Faragher-Ellerth, retaliation, accommodation, caps

How this toolkit is organized

Sixteen modules, each usable alone. Companions:

Module 1 — The authority map

Authority What it supplies
42 U.S.C. § 2000e Definitions; religious accommodation
42 U.S.C. § 2000e-2 Core prohibition; disparate impact
42 U.S.C. § 2000e-3 Retaliation
42 U.S.C. § 2000e-5 Charge requirement, deadlines, right to sue, fees
42 U.S.C. § 2000e-16 · 29 U.S.C. § 633a · 29 C.F.R. part 1614 Federal sector — 45 days
42 U.S.C. § 1981 Race — no charge, longer period, no caps
42 U.S.C. § 1981a Damages and the caps by employer size
29 U.S.C. § 621 · § 623 · § 626 · § 631 Age, and waiver formalities
42 U.S.C. § 12101 · § 12102 · § 12111 · § 12112 · § 12117 · § 12203 Disability and its retaliation provision
42 U.S.C. § 2000ff · 29 C.F.R. part 1635 Genetic information
29 U.S.C. § 206 · 29 C.F.R. part 1620 Equal pay
29 U.S.C. § 2601 · § 2612 · § 2615 · 29 C.F.R. part 825 Leave, running in parallel
29 C.F.R. part 1601 · 1602 · 1604 · 1605 · 1606 · 1625 · 1630 Procedure, recordkeeping, substantive guidelines
McDonnell Douglas, 411 U.S. 792 (1973) Burden shifting
Morgan, 536 U.S. 101 (2002) Discrete acts versus hostile environment
Ledbetter, 550 U.S. 618 (2007) Pay claims and the statutory response
Faragher, 524 U.S. 775 (1998) · Ellerth, 524 U.S. 742 (1998) The affirmative defense
Burlington Northern v. White, 548 U.S. 53 (2006) Broad retaliation standard
Gross, 557 U.S. 167 (2009) But-for causation for age
Bostock, 590 U.S. 644 (2020) Orientation and gender identity within "because of sex"

Module 2 — The deadline worksheet

Fill this in first.

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

Then:

  • [ ] Deferral state? → 300 days ___
  • [ ] Any act barred as discrete but usable as background evidence? ___
  • [ ] Does a hostile environment theory reach further? ___
  • [ ] Race claim? → 42 U.S.C. § 1981: no charge, longer period, no caps ___
  • [ ] Pay claim? → each paycheck restarts the clock ___
  • [ ] Federal employee? → 45 days ___
  • [ ] State statute deadline? ___
  • [ ] Right-to-sue 90-day date, when it arrives: ___

Module 3 — Statute comparison

Title VII ADEA ADA § 1981
Protects Race, color, religion, sex, national origin Age 40+ Disability Race
Employer size 15 20 15 Any
Charge required Yes Yes Yes No
Causation Motivating factor But-for Mixed But-for
Compensatory / punitive Yes, capped No Yes, capped Yes, uncapped
Liquidated damages No Yes, if willful No No
Suit deadline 90 days from notice 60 days after charge 90 days from notice State limitations period

Plead everything that applies. The differences in causation, caps, and deadlines are large enough that the same facts produce very different cases under different statutes.

Module 4 — Evidence preservation

Immediately and continuously:

  • [ ] A dated log — incidents, witnesses, exact words, written the same day
  • [ ] Performance reviews, especially those predating any complaint
  • [ ] The handbook and complaint policy
  • [ ] Every written complaint, with proof of sending
  • [ ] Comparator information
  • [ ] Job description and any change
  • [ ] Personnel file — request it; many states require production

At termination: the stated reason in writing · the unsigned separation agreement and the time allowed · any severance release language.

After: a job search log from day one · the charge deadline on a calendar.

Two cautions. Taking confidential company documents can become a defense and has produced dismissals — note what exists rather than removing it wholesale. And check your state's recording law before recording anything; it is criminal in all-party-consent states.

Module 5 — Internal complaint template

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

Three things this document does: it creates protected activity under 42 U.S.C. § 2000e-3 · it defeats the Faragher–Ellerth defense · and it dates the complaint for the temporal-proximity evidence in Module 9.

Name the characteristic. A complaint about being "treated unfairly" may not qualify as opposition to an unlawful practice.

Send it through a designated channel, not only to the person involved. Keep a copy outside the employer's systems.

Module 6 — Charge drafting

  • [ ] List every protected characteristic that may apply
  • [ ] Always include retaliation if a complaint preceded an adverse action
  • [ ] Describe each act with its date
  • [ ] Describe the pattern if a hostile environment theory applies
  • [ ] Name comparators where known
  • [ ] Ensure the charge is verified
  • [ ] Near a deadline, file an intake questionnaire and verify afterward
  • [ ] Confirm dual filing with the state agency

Model narrative:

"I am [characteristics]. I was employed as [position] from [dates]. On [date] I was [adverse act]. [Comparator], who is [outside the class], [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."

A lawsuit is limited to claims raised in the charge or reasonably related to the investigation. Draft broadly; narrow later.

Module 7 — Pretext inventory

Evidence type What to look for Strength
Shifting explanations Termination meeting vs. position statement vs. deposition Strongest
Comparators Same conduct, different outcome, outside the class Very strong
Policy deviation Skipped discipline steps; criteria added late; unposted vacancy Strong
Timing Clean record, then discipline after a complaint Strong
Factual falsity The stated reason is untrue Strong
Direct statements A remark tying the decision to the characteristic Decisive, rare
Statistics Patterns across a workforce Systemic cases

Not pretext: that the decision was wrong, unfair, or harsh. An employer may make a bad decision for a lawful reason.

Where the second version appears: the employer's position statement. Request it.

Module 8 — Harassment and the defense

Elements: unwelcome · because of a protected characteristic · severe or pervasive enough to alter conditions · subjectively and objectively hostile.

Not covered: ordinary rudeness, a demanding manager, isolated remarks. Not a civility code.

Faragher–Ellerth:

  • Supervisor harassment + tangible employment action → vicarious liability, no defense.
  • Otherwise → the employer may prove both that it exercised reasonable care to prevent and correct, and that the employee unreasonably failed to use the procedure.
  • Co-worker harassment → negligence: knew or should have known, and failed to act.

For employees: report, in writing. For employers: the procedure is only a defense if it was real.

Module 9 — Retaliation

Elements: protected activity · adverse action · causal connection.

Protected activity includes filing a charge, participating in an investigation, and opposing a practice reasonably believed unlawful — including an internal complaint. The underlying claim need not succeed.

The adverse action standard is broader. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006): anything that would dissuade a reasonable worker from making or supporting a charge — including a lateral transfer, a schedule change, or exclusion from meetings.

Why it succeeds so often: simpler elements, and causation frequently established by timing alone.

The most common way a defensible case becomes indefensible is an adverse action shortly after a complaint.

Module 10 — Accommodation module

Trigger: a request. No magic words required.

The interactive process is the obligation — 42 U.S.C. § 12112, 29 C.F.R. part 1630. An employer that never engages violates the statute regardless of outcome.

Request template:

"I have a medical condition that limits [function]. I am requesting a reasonable accommodation and would like to begin the interactive process. Specifically, [what would help]. I can provide documentation of the disability-related need. Please respond in writing within [N] days."

Common accommodations: modified schedule · leave beyond an entitlement · reassignment to a vacant position · equipment · remote work · modified policy · restructuring of marginal functions.

Employer failure modes: refusing without explanation · demanding excessive documentation · a rigid maximum-leave policy without individualized assessment · treating the request as a performance problem · no documentation of the process.

Leave runs in parallel — 29 U.S.C. § 2612, 29 C.F.R. part 825. Exhausting leave does not end the accommodation duty.

Religion: parallel duty at 42 U.S.C. § 2000e and 29 C.F.R. part 1605; the belief must be sincerely held and religious, not part of an organized religion.

Module 11 — Damages and caps

Remedy Capped? Notes
Back pay No Drives most cases; reduced by mitigation
Front pay No Where reinstatement is impractical
Compensatory Yes — 42 U.S.C. § 1981a By employer size
Punitive Yes Malice or reckless indifference; not against government
§ 1981 damages No Race claims only
Liquidated (age) — Willful violations — 29 U.S.C. § 626
Fees — To a prevailing plaintiff

Mitigation. Reasonable efforts to find comparable work. Keep a job search log from day one.

Module 12 — Separation agreement audit

  • [ ] Is consideration beyond what is already owed?
  • [ ] Does it reference age claims specifically (if age applies)?
  • [ ] Is it written so the employee can understand it?
  • [ ] Advice to consult counsel?
  • [ ] 21 days to consider (45 in a group program)?
  • [ ] 7-day revocation period — cannot be waived?
  • [ ] Group termination: disclosure of ages and job titles selected and not selected?
  • [ ] Does it purport to bar filing a charge? (It cannot.)
  • [ ] Non-monetary terms: neutral reference · separation characterization · confidentiality carve-outs.
  • [ ] Tax allocation between wages and non-wage damages.

A defective age waiver under 29 U.S.C. § 626 is void — the employee keeps the severance and the claim.

Module 13 — Employer compliance

  1. A complaint procedure that works — multiple channels · prompt investigation · documented outcome · communication to the complainant.
  2. Consistent performance documentation — contemporaneous, honest, uniformly applied.
  3. A documented interactive process for every accommodation request.
  4. Extreme care after a complaint — discipline shortly afterward is the highest-risk act available.
  5. Position statements that are true and complete — they are quoted at deposition.
  6. Recordkeeping under 29 C.F.R. part 1602; failure to preserve during a charge can produce an adverse inference.

The self-critical analysis trap. Asserting the Faragher–Ellerth defense generally puts the adequacy of the internal investigation at issue and waives privilege as to it — the defense that protects the employer requires producing the file it would rather withhold.

Module 14 — State law

Frequently better: lower employer thresholds, sometimes one employee · additional protected characteristics — marital or caregiver status, arrest or conviction history, credit history, hairstyle · longer filing periods · no damages caps · individual supervisor liability in some states · local ordinances adding more.

Evaluate the state claim in parallel from the first meeting — a federal claim lost on the 300-day rule may still be alive under state law.

Module 15 — Five-minute intake

  1. When exactly were you told? — each act
  2. Which state? — deferral or not
  3. Which characteristic? — is it race, which opens § 1981
  4. Did you complain? In writing? To whom? When?
  5. What reason did they give — and has it changed?
  6. Who else did the same thing, and what happened to them?
  7. What does the record look like before the complaint?
  8. Did you sign anything at hiring? — arbitration
  9. Have you signed anything since? — release
  10. Are you looking for work, and writing it down? — mitigation

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

Module 16 — Failure modes and three sentences

Ranked: missing the 180/300-day charge deadline · missing the 90-day right-to-sue window · waiting to see if things improve · drafting the charge too narrowly · never complaining internally · complaining without naming the characteristic · pleading only Title VII where § 1981 offers more · ignoring the state statute · not requesting the position statement · treating discrete acts as a continuing violation · failing to log the job search · signing a separation agreement without checking the age waiver formalities.

"When exactly did they tell you?"

"Put the complaint in writing, name the characteristic, and keep a copy at home."

"What did they say the reason was — and what did they say it was the second time?"

Module 17 — Two worked cases

17.1 The passed-over supervisor

Facts. Promotion denied in March, with a remark 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.

Module 2 result.

Act Date Status in February (300-day state)
Failure to promote March Time-barred — background evidence only
Shift change June Timely
Written warning September Timely
Termination January Timely

Module 3 result. The claim is racial, so 42 U.S.C. § 1981 applies: no charge requirement, a far longer period, and no damages caps. The March promotion is alive there. Identifying this is the single most valuable act in the first meeting.

Module 8 result. If the conduct forms a pattern, the hostile environment theory reaches the entire period under Morgan.

Module 9 result — the strongest claim. Eleven unblemished years, a documented complaint, a first warning two months later, termination four months after that. Temporal proximity does the causal work, and Burlington Northern v. White supplies a broad adverse-action standard.

Module 11 result. Back pay is uncapped and drives value; the 42 U.S.C. § 1981a caps do not touch the § 1981 claim at all.

17.2 The accommodation never discussed

Facts. An employee tells her supervisor she is "having a hard time with the early shift because of my medication." Nothing happens. Three months later she is terminated for attendance.

Module 10 result. No magic words are required. That sentence triggers the interactive process under 42 U.S.C. § 12112 and 29 C.F.R. part 1630. The failure to engage at all is the violation, independent of whether an accommodation would have been reasonable.

Why the defense collapses. No record of any discussion, no undue hardship assessment, no consideration of reassignment. The process is the obligation, and an undocumented process cannot be defended.

The compounding error. Terminating for attendance caused by the unaccommodated condition converts a fixable dispute into a discharge claim with back pay attached.

What would have prevented it. A ten-minute conversation and a one-paragraph note.

Module 18 — Practice notes by role

Employees. Three acts carry most of the value: write down the date you were told · put any complaint in writing, naming the characteristic, and keep a copy at home · file the charge, or at minimum learn the deadline, the day you first suspect. Filing commits you to nothing and preserves an option that otherwise expires silently.

Employee counsel. Module 2 before the merits, every time. Then: is there a § 1981 claim · does the state statute reach further and allow longer · does a hostile environment theory reach back under Morgan · and is retaliation the stronger claim. Request the position statement, which is where the second version of the reason appears.

Employer counsel. Audit the complaint procedure against Faragher–Ellerth — it is only a defense if it functions — and warn the client, in writing, that discipline shortly after a complaint is the highest-risk act available to it. And weigh the self-critical analysis trap before asserting the defense.

Human resources. Contemporaneous, consistent performance documentation, and a written record of every interactive process. Both are cheap; both are decisive.

Both sides on value. Back pay is uncapped and drives most cases, mitigation reduces it, and age claims — with no compensatory or punitive damages but liquidated damages for willfulness — settle on a different logic entirely.

Module 19 — Where this connects

Discharge and benefits. A discharged employee usually has an unemployment claim running simultaneously, in which the employer must state its reason — and that statement is evidence here. See Unemployment Insurance: A Comprehensive Guide for Claimants and Employers and Filing and Contesting an Unemployment Claim: A Practical Checklist.

Pay claims. Misclassification and unpaid overtime frequently accompany discrimination claims, on their own separate clocks. See Documenting and Pursuing an Unpaid Wage Claim: A Practical Checklist and The Wage and Hour Claim Toolkit.

Leave and accommodation. The disability and leave obligations run in parallel and are constantly confused. See The Leave and Accommodation Toolkit.

Licensed professionals. Where a discharge triggers a report to a licensing board, a separate proceeding with a separate standard begins. See The License Is the Livelihood: How Occupational Discipline Works and Why It Moves So Fast and Responding to a Licensing Board Complaint or Investigation: A Practical Checklist.

Deadlines. Federal charge windows, the ninety-day suit window, state fair employment deadlines, and any wage or contract period all run simultaneously and differently. See The Clock You Cannot See: How Limitations Periods Quietly Decide Cases and The Limitations, Deadlines, and Timeliness Toolkit.

Resolution. Nearly all of these cases settle, and the non-monetary terms — a neutral reference, the separation characterization, confidentiality carve-outs — frequently matter more than the last increment. See Mediation Advocacy and Negotiation: A Comprehensive Guide to Preparing, Framing, and Closing a Settlement.

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