Removing an EEOC Complaint to Court

If you have filed a discrimination case with the federal Equal Employment Opportunity Commission ("EEOC"), you will have the choice after 180 days to remove it and file in court. Either the EEOC or a court has the authority to award damages including back wages, emotional distress, and sometimes punitive damages.

There are some differences, however. Below are some things you should consider in making a decision about removing your EEOC complaint.

Reasons to leave a claim in the EEOC

There are many reasons you might choose to leave your case in EEOC. The EEOC's sole responsibility is to handle claims of discrimination and sexual harassment. This means they have lots of experience in discrimination laws.

The EEOC process is also somewhat less formal than court. You are almost always better off having a lawyer than handling your case yourself. But if you have chosen to represent yourself, the EEOC process is more user friendly and easier to manage without at attorney.

The EEOC filings are not public records unless or until there is an investigative finding. If you are concerned about future employers knowing that you filed an employment discrimination claim, staying in the EEOC gives you an opportunity to pursue and resolve those claims before the information becomes public. Once there is an investigative finding your complaint will be a matter of public record. If you go to a public hearing at the EEOC, that too will be a public record.

Reasons to remove a case from the EEOC

There are also many reasons you might choose to withdraw your claim from the EEOC.
One reason might be timing. You have to file with the EEOC within 300 days of the discriminatory act, but once you meet that deadline you have a full three years to file in court. If you had to file an EEOC complaint quickly to meet the statute of limitations, withdrawal may give you more time to develop your claims before proceeding.

Another is that the discovery available in the EEOC is more limited and discretionary than it is in court. In the EEOC, the investigator will have discretion about whether and to what extent you can get information from your employer. In Superior or Federal Court, discovery is mandatory and broad. As the plaintiff, you usually need access to a fair amount of information from your employer to prove a discrimination or harassment claim.

When to make a decision about removing a case from the EEOC

The earliest time you can remove your discrimination claim is 180 days after you file the complaint with the EEOC. There are certain points in the process where people consider removing the complaint.

On the 180th day. If you have filed with the EEOC only to exhaust your administrative remedies and always intended to remove the complaint, this is the time to do it. You do not need to file a motion. You can fill out a simple withdrawal form and send it to the EEOC office handling your complaint. You should receive confirmation of withdrawal within a week or two, but the withdrawal is effective immediately.

After receiving the employer's response. At some point in the EEOC process, your employer will have to file a response to your charge of discrimination.  If this is after 180 days have passed, this is often the point at which plaintiffs decide to remove their complaint to file in court. At this point you have some insight into your employer's position that can help you and your attorney frame your civil complaint in state or federal court.

After mediation. If the EEOC offers an opportunity to mediate, you may choose to stay in EEOC at least through the mediation. Unlike most mediations once you are in court, there is no charge for the mediator. This gives you a free or low cost opportunity to see if you can reach resolution early in the case.

After you have found an attorney.  Sometimes people file an EEOC complaint because they are about to run out of time, but have not yet found a lawyer to represent them. It is common for people to remove their EEOC claims to file in court once they have secured representation by an employment lawyer. 

Filing in federal court after an EEOC decision

Under the applicable statute of limitations you have three years for most discrimination claims to file a lawsuit in court.  If you have a claim pending in the EEOC and a decision issues after the statute of limitations has passed, you can still file your federal claims.  You will receive a notice from the EEOC, and you have 90 days after receiving that notice to file.

You can do this even if the underlying statute has passed, but it must be filed within the 90 day period.  In addition, this rule only applies to federal claims.  With some limited exceptions you cannot rescue state law discrimination claims after three years have passed.

In most cases of discrimination, the state and federal laws are very similar.  There are classes that are protected under Massachusetts law but not federal law.  If your claim involves discrimination based on sexual orientation, gender identity, or genetic information you will not be able to bring these claims after the three year period even if you get a 90 day notice from the EEOC.

How we can help

If you have a claim pending in the EEOC and would like advice about what to do next, we can help.  You can use the button below to schedule a call back from a member of our team, give us a call at  781-784-2322, or fill out our web form  to let us know a little more about your situation.

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10.0Emily E. Smith-Lee