Summary. What to do this week, what to write down, and how to file so the charge does not limit you later.

This week, before anything else

Find out your deadline.

A charge must generally be filed within 180 days of the discriminatory act — 300 days in most states, where a state or local fair employment agency covers the conduct.

That is the whole calendar. Not a year. Not two.

And you generally cannot skip it. For Title VII, ADEA, and ADA claims, a timely charge is a precondition to suing. A claim never charged is a claim that cannot be brought, regardless of merit.

Three refinements:

  • Each discrete act starts its own clock — a termination, a failure to promote, a denied transfer. Earlier acts outside the window are time-barred even if related.
  • Hostile work environment is different. If any act contributing to the environment falls within the window, the whole course of conduct may be considered.
  • Each discriminatory paycheck restarts the pay clock.

How to find out, today, for free: call the EEOC, call your state fair employment agency, or take a free consultation with an employment lawyer. Twenty minutes.

And if you are close to the deadline and not ready: file anyway. A charge filed to preserve the deadline can be amended. A deadline that passes cannot be recovered.

Part one: write it down, now

Memory degrades fast, and access to evidence ends the day you leave.

The incident log

For every incident: date · time · what was said or done, verbatim if you can · who did it · who was present · where.

Email each entry to your personal account the same day. A dated email in an account you control is contemporaneous evidence and survives a work account being shut off.

Do not record without checking your state's consent rule. A number of states require all-party consent, an unlawful recording can be a crime, and it is frequently inadmissible.

The file you should already have

  • Every performance evaluation, especially the good ones. A sudden negative review after years of positive ones is the strongest pretext evidence available — and it exists only if you kept the earlier ones.
  • Commendations, awards, positive emails. Forward them to yourself.
  • The handbook and any policy you might be accused of violating
  • Your offer letter and job description
  • Pay records

Comparators — identify them while you still can

A comparator is someone outside your protected class who did substantially what you did and was treated better. It is the single most decisive category of evidence in these cases.

Write down now:

  • Who else violated this policy, and what happened to them?
  • Who else had this attendance record? This performance rating? This customer complaint?
  • Who else requested the same accommodation or schedule?
  • Who was hired, promoted, or retained instead of you, and what were their qualifications?
  • Names, dates, and who else knows.

What makes a comparator useful: same supervisor · same standards · comparable conduct · similar position and history · a meaningfully different outcome.

What not to do: do not take company documents you are not authorized to have, do not access systems you should not, and do not forward confidential personnel or client information to yourself. Each creates an independent problem and has cost strong plaintiffs their cases. Write down what you observed. That is admissible.

Part two: complain internally, in writing

This is the single most important procedural step an employee can take, and it does three things.

It may fix the problem.

It removes the employer's harassment defense. Where harassment is by a supervisor without a tangible employment action, the employer can defend by showing it exercised reasonable care to prevent and correct and that you unreasonably failed to use its complaint procedures. A written complaint eliminates the second half.

It creates the retaliation claim. If anything changes after you complain, you have a claim that requires a calendar rather than a reconstruction — and retaliation is frequently the stronger claim in the case.

How to write it

"I want to report the following. On [dates], [person] [did or said what — specifically, quoted where possible]. [Names of witnesses.] I believe this is because of my [race / sex / age / disability / religion / national origin / other]. I am asking that this be investigated. Please respond in writing."

Use the employer's stated procedure. Keep a copy. Note the date. Forward it to your personal email.

Name the protected characteristic. A complaint about being "treated unfairly" may not be protected activity; a complaint that you are being treated differently because of a protected characteristic is.

After you complain

  • Log everything that changes, the same day: hours, assignments, evaluations, exclusion, scrutiny, discipline, schedule
  • Note the timeline. You complained on the 4th; they acted on the 11th. Proximity is the proof.
  • Ask for the reason in writing: "Could you tell me in writing why my territory was reassigned?"
  • Keep performing. A genuine decline after a complaint is the employer's best defense.
  • Understand that a wrong complaint is still protected. A reasonable, good-faith belief is enough — you can lose the discrimination claim and win the retaliation claim.

Part three: filing the charge

Where

The EEOC, the state or local fair employment practices agency, or both.

Many states have a work-sharing agreement under which filing with one is deemed filing with the other. Do not assume it. Ask, explicitly: "Does filing here also constitute filing with [the other agency]? Do I need to request dual filing?"

Consider which agency is better for you. State agencies frequently cover more protected characteristics, smaller employers, and provide longer deadlines and no damages caps. In many cases the state claim is the better claim, and the state agency is the right filing.

The intake questionnaire versus the charge

You will typically complete an intake questionnaire first. The questionnaire is not always the charge. In some circumstances a questionnaire has been treated as a charge, but you should not rely on that.

Confirm, in writing, that a charge has been filed and get the charge number.

Drafting the charge — this matters more than people realize

What the charge says shapes what you can litigate later. Claims not reasonably related to the charge can be dismissed for failure to exhaust.

Include:

  • Every protected characteristic that may be involved — race, color, religion, sex, national origin, age, disability, and any state-law characteristic. Check every box that applies.
  • Retaliation, if you complained about anything. Check that box.
  • Every type of harm — termination, demotion, failure to promote, harassment, failure to accommodate, unequal pay, discipline, transfer, hostile environment.
  • Dates, especially the most recent act, which establishes timeliness.
  • A "continuing action" designation where the conduct is ongoing.
  • Enough facts to make the theory clear, without writing a brief.

Keep it factual and specific. Names, dates, what happened, and why you believe it was because of a protected characteristic.

And this is worth a free consultation even if you file yourself. An employment lawyer will spend twenty minutes telling you which boxes to check and which facts to include, and that twenty minutes frequently preserves claims that would otherwise be dismissed on exhaustion grounds two years later.

Part four: what happens next

1. The employer is notified and submits a position statement — its account of why it did what it did.

Request a copy. The EEOC generally provides it and gives you an opportunity to respond. This document is valuable — it locks the employer into a stated reason, and a reason that later shifts is pretext evidence.

2. Mediation is frequently offered. It is voluntary, confidential, usually early, and it resolves a meaningful share of charges. Consider it, and consider having a lawyer for it — mediated settlements are final, and the release will be broad.

3. Investigation. Depth varies enormously. Respond promptly to every request for information. Provide names of witnesses and comparators.

4. A determination — reasonable cause, dismissal, or, most commonly, closure without a finding either way.

5. The right-to-sue letter.

Part five: the second deadline

After the right-to-sue letter, you generally have 90 days to file suit.

That deadline is unforgiving, and it ends a large number of claims — usually held by people who assumed that filing the charge had preserved everything indefinitely.

Two things to understand:

A dismissal is not a merits determination. The agency closes most charges without a deep investigation. A private lawsuit proceeds independently, and cases the EEOC dismissed are won regularly.

Ninety days means ninety days. Not three months. Not "when I find a lawyer." Calendar it the day the letter arrives, and start talking to lawyers immediately — many will not take a case with two weeks left on the clock, because there is no time to evaluate it.

And you can request a right-to-sue letter early in many circumstances, generally after 180 days from filing, if you would rather move to court than wait out an investigation.

Part six: severance and releases

If you are offered severance, the week before signing is the highest-leverage week you will have.

Four things to know:

You generally cannot be barred from filing a charge. An agreement cannot prevent you from filing with the EEOC or cooperating with an investigation. It can validly release your personal monetary recovery.

Age claims have special rules. A release of ADEA claims must satisfy specific requirements — a 21-day consideration period (45 days in a group termination, with disclosure of ages and titles of those selected and not selected), a 7-day revocation period after signing, advice to consult an attorney, and consideration beyond what you were already owed. A non-compliant release does not release the age claim.

Consideration must be extra. Wages and accrued vacation you were already owed are not consideration.

Almost everything is negotiable — more money · an agreed reference · continued benefits · outplacement · mutual non-disparagement · a carve-out preserving unemployment eligibility · removal of a non-compete · a neutral characterization of the separation. Employers expect a counter.

Before signing: take the days you are entitled to · find out your charge deadline, which is running regardless · get a free consultation, because reviewing a severance agreement is routine work · and do not sign in the room.

Part seven: talking to a lawyer

Most employment lawyers offer a free consultation, and fee shifting means a prevailing plaintiff recovers attorney's fees from the employer — which is why representation is available on claims that would be uneconomical elsewhere.

Bring:

  • Your incident log and the timeline
  • Performance evaluations — all of them
  • The written complaint and any response
  • The termination letter or separation documents
  • Any severance agreement
  • The handbook and relevant policies
  • Your comparator list with names and dates
  • Pay records
  • Key dates: hire · the act · the complaint · any retaliation · separation

Ask:

  1. What is my deadline, and how much time is left?
  2. Which statutes apply — including Section 1981, the Equal Pay Act, FMLA, and any state-law claim with better remedies?
  3. Does my state cover characteristics or employers federal law does not?
  4. Should I file with the state agency, the EEOC, or both?
  5. What should the charge say?
  6. Is there a retaliation claim?
  7. What is a realistic range of outcomes?
  8. Is there a shorter deadline on any adjacent claim — whistleblower provisions can be as short as 30 days.
  9. What does this cost me?

If a private lawyer is not available: the agencies take charges directly, legal aid handles employment cases in many places, law school clinics take them, and the EEOC's own staff will help you complete a charge. All free.

Part eight: four situations

The file she kept

Ottoline Beauvais-Nkemdirim had nine years of "exceeds expectations" evaluations. She was 54. A new director arrived, and within four months she got her first "needs improvement," then a performance plan with metrics nobody in her role had ever been held to, then termination. Her replacement was 31 with less experience.

The employer said performance. She had four kinds of pretext evidence:

The nine prior evaluations, which she had saved and forwarded to her personal email over the years — without them, the sudden decline would have stood unrebutted.

Comparators — two colleagues, same role, same supervisor, same metrics, no performance plan.

Shifting explanations — the termination letter said performance; the position statement added "restructuring"; the deposition added "culture fit."

Comments — the director's repeated references to needing "new energy" and "digital natives."

The lesson. The most powerful evidence in an age case is the file you kept when nothing was wrong. Forward your good evaluations to your personal email today.

The email he never sent

Fitzgerald Achebe-Vance endured eighteen months of comments about his accent, exclusion from client meetings, and mimicry in front of the team. He never complained, assuming HR worked for the company — which is true, and which cost him the case.

Because the harassment was by a supervisor without a tangible employment action, the employer could raise the affirmative defense: it had a policy, a hotline, and training, and he had unreasonably failed to use the complaint procedures.

One email would have removed half of that defense:

"I want to report that [supervisor] has repeatedly made comments about my accent and excluded me from client meetings. I believe this is because of my national origin."

Sent through the stated procedure, copy kept, dated. And it would have created a retaliation claim if anything had changed afterward.

The policy that was not an analysis

Perpetua Ilunga-Whitcombe exhausted twelve weeks of FMLA leave for a condition requiring intermittent absences, and asked for four additional weeks plus a later start time on return. She was terminated at the end of the twelve weeks, with a letter citing the leave policy.

The policy was not the answer. An inflexible leave policy does not satisfy the duty to consider additional leave as a reasonable accommodation, and automatic termination at the end of FMLA is among the most litigated employer errors in this field.

What was missing was the interactive process — no meeting, no inquiry about duration, no consideration of the modified schedule, no consideration of reassignment.

An employer that never engages in the interactive process frequently loses on that ground alone, because it cannot show it evaluated anything.

The claim she lost and the one she won

Cassius Oyelaran-Sandoval complained in writing that a promotion decision was racially discriminatory. He was wrong — the successful candidate had a credential he did not.

Nine days later his territory was reassigned to the least productive region, he was removed from the incentive plan, and his schedule was changed in a way that made his commute unworkable.

He lost the discrimination claim and won the retaliation claim, for two reasons: the underlying complaint does not have to be correct if made in good faith, and the retaliation standard is broader — an action counts if it would have dissuaded a reasonable worker from complaining, even without affecting the terms and conditions of employment.

The lesson, and it is the central one: the retaliation claim requires a calendar, not a reconstruction. Which is why you complain in writing, on a date, before anything else happens.

Part nine: a calendar

This week

  • Find out your deadline — EEOC, state agency, or a free consultation. Twenty minutes.
  • Start the incident log; email each entry to your personal account
  • Forward your good evaluations, commendations, and positive emails to yourself
  • Save the handbook, your job description, and any policy at issue
  • Write down every comparator you can think of — names, dates, who else knows

Week one to two

  • Complain internally, in writing, naming the protected characteristic, through the stated procedure. Keep a copy.
  • Ask for a written response
  • Begin the retaliation log the same day

Before the deadline

  • Decide which agency — state agencies frequently cover more characteristics, smaller employers, longer deadlines, and no damages caps
  • Get a consultation before drafting the charge. Twenty minutes on which boxes to check.
  • File. If you are close to the deadline and not ready, file to preserve it and amend later.
  • Confirm in writing that a charge was filed, and get the charge number
  • Ask explicitly about dual filing

After filing

  • Request the employer's position statement and respond to it
  • Consider mediation, with counsel if possible
  • Respond promptly to every information request
  • Keep the retaliation log current

When the right-to-sue letter arrives

  • Calendar 90 days that day
  • Start calling lawyers immediately — many will not take a case with two weeks left

If offered severance

  • Take the full consideration period
  • Get a consultation — reviewing a severance agreement is routine
  • Negotiate. Employers expect a counter.
  • Do not sign in the room

Part ten: the mistakes

Waiting to find out the deadline. The most expensive mistake in employment law, and the most common.

Assuming a year, or two. It is 180 or 300 days.

Never complaining internally, in writing. It preserves a defense for the employer and forfeits your retaliation claim.

Complaining about "unfair treatment" without naming the protected characteristic. That may not be protected activity.

Not keeping the good evaluations. They are the pretext evidence.

Not writing down comparators while you still have access and memory.

Taking company documents you are not authorized to have. It creates an independent problem and has cost strong plaintiffs their cases.

Recording without checking the consent rule. A crime in some states, and frequently inadmissible.

Filing a narrow charge. Claims not reasonably related to the charge can be dismissed for failure to exhaust. Check every box that applies.

Assuming the intake questionnaire is the charge. Confirm in writing.

Assuming a dismissal means no case. It does not.

Missing the 90 days after the right-to-sue letter.

Signing the severance in the room, before finding out the deadline or what is being released.

Part eleven: the documents

The internal complaint

[Date]

RE: Formal complaint of [discrimination / harassment / failure to accommodate]

To: [HR / the person designated in the policy]

I am making a formal complaint under the company's [anti-harassment / equal employment opportunity] policy.

What happened:

Date What occurred Who Witnesses
[Specific, quoted where possible]

I believe this treatment is because of my [race / color / religion / sex / sexual orientation / gender identity / pregnancy / national origin / age / disability / (state-law characteristic)].

[If comparators exist:] I note that [name(s)], who [are outside the protected class], [did substantially the same thing / are in the same position] and were [treated differently — specifically].

[If accommodation:] I am requesting the following accommodation: [specific]. I am able to perform the essential functions of my position with it. I am willing to discuss alternatives that would be effective.

I am asking that this be investigated and that the conduct stop. Please respond in writing and let me know what steps will be taken and by when.

[Name] · [Title] · [Date]

Copy retained; also sent to my personal email.

The accommodation request

RE: Request for reasonable accommodation

I have a disability that affects [function — not a diagnosis]. I am requesting the following accommodation: [specific — a modified schedule of ___ · [N] weeks of additional leave · remote work on ___ · modified equipment · reassignment to a vacant position for which I am qualified].

With this accommodation I am able to perform the essential functions of my position.

Documentation from my [provider] confirming the disability-related need is [enclosed / available on request]. I am not disclosing my diagnosis, which I understand is not required.

I am open to discussing alternatives that would be effective, and I am available to meet.

Please respond in writing by [date].

[Name] · [Date]

The retaliation log

Date I complained in writing: [] · To whom: [] · Copy kept: ☐ · Emailed to myself: ☐

Date What changed Who What was said (quote) Witnesses Documented how
Territory reassigned Email, screenshot
Removed from incentive plan
Schedule changed
First written warning in ___ years Copy kept

Before/after comparison: evaluations · commendations · disciplinary history · assignments · hours · access.

Ask in writing: "Could you tell me in writing why [the change] was made?"

Email every entry to your personal account the same day.

The charge — what to include

CHARGE OF DISCRIMINATION

Discrimination based on (check every box that applies): [ ] Race [ ] Color [ ] Religion [ ] Sex (including pregnancy, sexual orientation, gender identity) [ ] National origin [ ] Age [ ] Disability [ ] Genetic information [ ] RETALIATION [ ] Other: [state-law characteristic]

Earliest date: [] · Latest date: [] · [ ] CONTINUING ACTION

Harm (check every one): [ ] Termination [ ] Failure to hire [ ] Failure to promote [ ] Demotion [ ] Discipline [ ] Harassment / hostile environment [ ] Failure to accommodate [ ] Unequal pay [ ] Transfer / reassignment [ ] Constructive discharge [ ] Other

The particulars:

I began working for [employer] on [date] as a [position]. [One sentence of good history if you have it.]

On [date], [what happened — specific, dated]. On [date], [what happened].

[Comparator paragraph: "[Name], who is [outside the class], [did the same thing / is in the same position], and was [treated differently]."]

[Complaint paragraph: "On [date] I complained in writing to [name] that I believed this was because of my [characteristic]. On [date], [what happened afterward]."]

I believe I was discriminated against because of my [characteristic], and retaliated against for complaining, in violation of [Title VII / the ADEA / the ADA / (state law)].

Then, in writing to the agency: "Please confirm that a charge has been filed and provide the charge number. Please confirm whether this filing also constitutes filing with [the other agency] under any work-sharing agreement, or whether I need to request dual filing."

The response to the position statement

RE: Charge No. [_______] — Response to Respondent's Position Statement

Respondent asserts: "[quote the stated reason]."

That is inaccurate or incomplete for the following reasons:

1. Comparators. [Name], who is [outside the class], [did the same thing] on [date] and was [treated differently]. [Repeat for each.]

2. Shifting explanations. At the time of [the action] I was told "[quote]." The position statement now states "[quote]." These are different reasons.

3. Deviation from policy. Respondent's [progressive discipline policy, § ___] provides [quote]. That procedure was not followed in my case, though it was followed for [name] on [date].

4. Timing. I complained on [date]. [The action] occurred on [date] — [N] days later.

5. Documents. Respondent's assertion that [X] is contradicted by [document], enclosed.

6. Witnesses. [Names and contact information of people who observed the conduct or the differential treatment.]

Enclosed: [performance evaluations · my written complaint · emails · policy excerpts · the incident log].

[Name] · [Date]

Part twelve: situations with their own rules

If you still work there. File anyway — the deadline runs regardless, and retaliation for filing is separately prohibited. Keep performing, keep the log, and expect that the employer will learn of the charge, because it is served with notice. Many charges are filed by current employees, and it is not an unusual posture.

If you are a public employee. Additional constitutional protections, civil service procedures, and frequently different deadlines and forums apply. Ask specifically about grievance timelines, which can be measured in days and which run in parallel with the charge deadline.

If you are in a union. The grievance procedure runs on its own — frequently very short — timeline, and it does not substitute for a charge. Pursue both. Ask the union about the grievance deadline the same day you ask the agency about the charge deadline.

If you signed an arbitration agreement. It generally does not prevent you from filing a charge — an agency's authority is not waivable by a private agreement — but it may require that any lawsuit go to arbitration. Read what you signed, and know that its existence changes strategy rather than eliminating the claim.

If the employer is small. Federal thresholds are 15 employees for Title VII and the ADA, 20 for the ADEA. Many states cover employers with as few as one employee. If the federal door is closed, the state door frequently is not.

If the discrimination was by a customer, client, or vendor. An employer can be liable for third-party harassment it knew or should have known about and failed to correct. Report it in writing — that is what creates the knowledge.

If you were an applicant rather than an employee. Discrimination in hiring is covered. The deadline runs from the failure to hire. Comparator evidence is harder to obtain, which makes what you can document about the process — who interviewed you, what was said, who was hired — more important.

If you are an independent contractor. Most of these statutes protect employees, not contractors — which makes the misclassification question a threshold issue with real consequences. See the wage and hour materials.

If the conduct involved something other than discrimination. Safety, fraud, wage violations, patient care, environmental issues — those have their own whistleblower statutes, frequently with much shorter deadlines, some as short as 30 days. Say what actually happened when you first talk to a lawyer, not just the part that sounds like discrimination.

Part thirteen: mediation, and deciding whether to settle

A meaningful share of charges resolve at mediation, frequently within months rather than years. It is worth understanding before you get there.

What it is. A voluntary, confidential session with a neutral mediator. No one decides anything; the mediator moves offers. Nothing said in mediation is admissible later.

Why employers participate. Cost, certainty, confidentiality, and the elimination of a public record. Defending a charge through investigation and litigation costs far more than most settlements.

Why claimants participate. Speed, certainty, and the fact that the alternative is an investigation of unpredictable depth followed by a lawsuit that takes years.

What is usually negotiable beyond money: a neutral reference and an agreed script · removal of documents from the personnel file · a mutual non-disparagement clause · continued benefits · outplacement · a carve-out preserving unemployment eligibility · the characterization of the separation · and, occasionally, reinstatement.

What to think about before deciding:

  • What is the claim realistically worth, including back pay, front pay, emotional distress, and fees — and what are the damages caps for an employer of this size?
  • How strong is the evidence — do you have comparators, documents, and witnesses, or a version of events?
  • What does litigation cost you in time, stress, and the two to four years it takes?
  • What are you giving up — the release will be broad, and it will cover claims you have not thought of
  • Are attorney's fees included in the number, or additional?
  • Is there a tax consequence? Settlement allocation between back pay (taxable as wages), emotional distress, and fees matters, and it is negotiable. Ask about it before signing.

And two practical points. Bring a lawyer if you can — mediated settlements are final and the release is broad. And do not let a mediator's assessment of your case substitute for your own lawyer's; the mediator's job is to close the gap, not to advise you.

If it does not settle, nothing is lost. The charge continues, the offer is not admissible, and cases that fail at early mediation settle later with regularity once the position statement and the investigation have narrowed the issues.

Part fourteen: while it is pending

A charge takes months and sometimes longer. What you do during that time matters.

Keep working, if you are still there. Perform. A genuine decline gives the employer the defense it wants, and a strong record while a charge is pending is powerful evidence.

Keep the log going. Every change, the same day, emailed to yourself.

Mitigate, if you were terminated. Look for work, apply, keep records of the search — applications, rejections, interviews, dates. Back pay is reduced by what you earned or reasonably could have earned, and a documented job search protects the claim. Keep every offer, including ones you declined and why.

File for unemployment. It is a separate system with a separate standard, and receiving benefits does not undermine a discrimination claim. Note that an employer's stated reason for the separation in the unemployment proceeding can differ from the reason it gives the EEOC, and a difference is useful.

Be careful what you post. Social media is discoverable, and a post about how you are doing fine, or how you are furious, will be read back to you.

Do not discuss the charge widely. With your lawyer, yes. With people who may be witnesses, minimally — you do not want to be accused of coaching.

Respond promptly to the agency. Charges are closed for failure to cooperate.

Watch the deadlines that are still running — the 90 days after a right-to-sue letter, any shorter whistleblower or grievance deadline, and the limitations period on any claim you did not have to charge.

And keep track of your damages — lost wages, lost benefits, out-of-pocket costs, medical or counseling expenses if the conduct caused them, and the dates. That list is the number you will be negotiating over, and reconstructing it two years later is much harder than keeping it as you go.

Frequently asked questions

How long do I have? 180 days, or 300 in most states. Find out this week.

Do I need a lawyer to file? No. But a twenty-minute consultation before filing frequently preserves claims that would otherwise be dismissed for failure to exhaust.

Should I complain internally first? Generally yes, in writing, naming the protected characteristic. It removes a defense and creates a retaliation claim.

What if I complain and I'm wrong? A reasonable, good-faith belief is protected. You can lose the discrimination claim and win retaliation.

They said it was performance. That is their step. Yours is pretext — comparators, shifting explanations, policy deviations, and timing.

The EEOC dismissed my charge. Not a merits determination. You have 90 days to sue. Calendar it today.

Can I still file if I signed a severance agreement? You generally cannot be barred from filing a charge, though monetary recovery may have been released. If it was an age claim, check whether the release complied with the ADEA requirements.

What if I still work there? File anyway — retaliation for filing is separately prohibited, and the deadline runs regardless. Document everything that follows.

Related documents

Educational only, not legal advice. State and local fair employment law is frequently broader than federal law. Find out your deadline immediately — it is the one thing that cannot be fixed later.