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How Can I Preserve My Discrimination Claim?

by Gaines West, Attorney-at-Law, West, Webb, Allbritton & Gentry

This question is asked of me a lot. Often it is in the context of the Human Resources (HR) Department in a College or University advising that all that needs to be done is to file the discrimination complaint internally within the College or University first, but the ‘Rest of the Story’ of what must all be done never gets told. What I am writing about is exactly that: the Rest of the Story!

Let me introduce a phrase that may be new to you: the Abstention Doctrine. That phrase is a kind of legal shorthand that conveys to the legal mind and training a whole bunch of actions that need to occur. First, let me say HR got its initial advice absolutely spot on. But what may have been left out – the Rest of the Story – is what this Abstention Doctrine ‘business’ is all about. Think of it this way – if you are tasked to do a project, a multi-step project that requires that each step be completed in order, before you can declare the project finished - you are getting an idea of what the Abstention Doctrine is all about. The doctrine requires the person trying to preserve their discrimination claim to give her/his/their employer (College or University) every opportunity to resolve the dispute. BUT, the doctrine does not, and cannot, stop limitations periods from running out on state and federal discrimination (law) protections.

So why is this doctrine so misunderstood? That’s a harder question to answer, but I believe the answer is found in the belief that none of us really want to have to take our claim(s) (the horrible things that were done to us) to an outside agency (outside my College or University) to get the matter addressed and resolved. We WANT to believe that when those in power in MY College or MY University hear how badly I have been treated, all will be made well! Unfortunately, especially with claims of discrimination, this very often doesn’t happen. Your internal complaint languishes, hearings are set, and re-set, and the matter just drags on.

Does that mean you get to abandon your effort to resolve your complaint(s) because the time it is taking extends potentially beyond the limitations periods for reporting illegal conduct to a state or federal agency, or by filing a lawsuit? No, it does not. You must meet those deadlines, which include filing within 180 days with the Texas Workforce Commission – Civil Rights Division (TWC-CRD) or within 300 days with the Equal Employment Opportunity Commission (EEOC) - or sometimes by even filing a lawsuit. If you don’t you risk losing your claim(s) altogether. The bottom line is you have to first file your complaint with your employer and then be sure you file within the limitations periods in the law which protects you against discrimination. If you don’t give your employer a chance to resolve your claim by following their internal complaint procedures, no matter how long it takes (or the outcome), some judge may very well pull out the Abstention Doctrine to dismiss your case by asserting that you failed to let your own employer have the chance of resolving your complaint(s).

So, know and follow your internal procedures when claiming discrimination, but keep an eye out for the limitations in the various laws that may pertain to your claim(s). If you don’t know those limitations periods – get help. Find a lawyer who works in Higher Education Law to help you know and follow these deadlines. The Abstention Doctrine isn’t so mysterious, especially because now you know the “Rest of the Story!”

“The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions may be addressed here, should consult attorneys for advice on their particular circumstances.”

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