“Piggybacking” on Another Employee’s Charge of Discrimination?

Before an employee can file suit for discrimination under federal law, they must first file a charge of discrimination with the Equal Employment Opportunity Commission (the “administrative filing requirement”). But there are times when an employee may “piggyback” on another employee’s charge, as the U.S. Court of Appeals for the First Circuit recently explained.

In Perez-Abreu v. Metropol Hato Rey LLC, an employee filed an age discrimination lawsuit without complying with the administrative filing requirement. He attempted to invoke the so-called “single-filing” rule, which allows an employee to “piggyback” on a timely-filed charge made by a similarly-situated co-worker. Although the First Circuit declined to adopt the rule in the case before it, it noted that the Second Circuit had identified three versions of the rule: (1) the broadest test, which requires only that the claims of the non-filing employee and the filing employee arise out of the same circumstances and occur within the same general timeframe; (2) a narrower version, requiring that the charge gives notice of “class-wide” discrimination impacting a group of workers including the non-filing employee; and (3) the narrowest test, which requires that the charge not only gives notice of class-wide discrimination but also that the filing employee asserts that they are representing the class or others similarly situated. Different federal Circuits have applied different versions of this rule.

Additionally, the traditional single-filing rule only allows the non-filing employee to participate in a class action or join in a lawsuit brought by the filing employee. The Second Circuit, however, has recognized one situation in which such employee could file their own, separate lawsuit. While both Title VII and the Age Discrimination in Employment Act have a charge-filing prerequisite, only Title VII also requires the employee to receive a Notice of Right to Sue from the EEOC before being able to file suit. Since the ADEA does not have the requirement, an employee could piggyback on the co-worker’s charge to file their own suit. Whether the Second Circuit’s position would be adopted by its sister Circuits is unknown, however.