When suing employers for illegal workplace discrimination, some plaintiffs forego federal Title VII in favor of claims under state anti-discrimination laws. This choice is made for a number of tactical reasons, including statute of limitations concerns, as well as attempting to prevent the employer from removing the claim to federal court. Last week, the Fourth Circuit Court of Appeals concluded that a plaintiff met the procedural filing requirements for a South Carolina discrimination claim by filing a Charge of Discrimination with the federal EEOC.

In Whitten v. Fred's, Inc., the plaintiff filed a sexual harassment Charge with the EEOC. Under a work sharing agreement, the EEOC forwarded the Charge to the South Carolina Human Affairs Commission (SCHAC) for investigation. SCHAC in turn returned the Charge to the EEOC, which investigated and eventually dismissed the Charge. The plaintiff missed her deadline for filing suit under Title VII. However, she sued under the South Carolina Human Affairs Law, claiming that the limitations period on that claim never ran because SCHAC never formally dismissed her Charge.

The Fourth Circuit reversed a grant of summary judgment for the employer, concluding that the plaintiff had met the filing requirements under South Carolina law. The employer contended that the plaintiff could not sue under the South Carolina law because she had never filed a Charge with SCHAC. The Fourth Circuit rejected this reasoning, concluding that filing an EEOC Charge that was forwarded to SCHAC met this procedural requirement.

The court also concluded that the EEOC's closing of the Charge did not begin the 120-day limitations period for filing suit under South Carolina law following a SCHAC dismissal. The transfer of the Charge back to the EEOC was not a dismissal, and allowed the plaintiff to claim the longer one-year limitations period for suing under South Carolina law.