On January 8, 2013, the U.S. Supreme Court was petitioned to rule on whether employees must file a new or amended charge to pursue an employment retaliation claim arising from an initial Title VII discrimination charge.  If the Court grants certiorari, we’re likely to see the resolution of a decade-long circuit split created by the holding in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).


On August 14, 2009, Richter, a store manager for Advanced Auto Parts (Employer), was removed from her position for failing to make timely bank deposits.  On August 23, 2009, she informed her Regional Vice President that she filed charges with the EEOC based on her belief that she was removed from her position because of her race and gender.  Her employment was terminated two days later.  Richter informed the EEOC that the Employer terminated her employment, and that she had “new info[rmation] on possible retaliation[.]”  Petition for Writ of Certiorari at p.5.  Richter, however, did not file a formal charge based on the alleged retaliation.  And the EEOC did not issue a right to sue letter until August 2010, which stated that the agency had “reviewed the investigative file[,] including the additional information [Richter] submitted.”  Id. at 6.  Richter filed suit for retaliation under Title VII and Missouri law in the Western District of Missouri.  The district court granted the Employer’s motion to dismiss for failure to exhaust administrative remedies.

Circuit Split

On August 1, 2012, the Eighth Circuit affirmed the district court’s dismissal order.  The majority held that a plaintiff who seeks to file a retaliation charge under Title VII’s anti-retaliation provision must file a new or amended charge if the retaliation is the result of the plaintiff’s filing an earlier charge with the EEOC.  The Eighth Circuit thereby joined the Tenth Circuit and deepened a split with the Fourth, Sixth, Second and Eleventh Circuits.


Employers in circuits that have not addressed this question have been subject to uncertainty when defending Title VII retaliation claims.  On one hand, the majority of circuit courts take the position that such retaliation claims are actionable, and the EEOC, participating as amicus, lent its support to Richter’s position.  But, on the other hand, the Employer effectively demonstrated that Morgan can be used to successfully challenge retaliation claims where a complainant failed to file a separate charge with the EEOC.  Employers may soon receive clarity.  The Supreme Court has until February 11 to decide whether to grant certiorari.  Stay tuned …

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.