Employment Litigation [cont'd 2]

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Retaliation prohibited

An employer may not retaliate against a person because they have opposed a prohibited practice. Retaliation includes firing, blacklisting, or otherwise discriminating against someone, and covers retaliation not only against the person who filed the complaint, but also as against those persons who testify on behalf of the complainant, or who assist with, or otherwise participate in, a complaint. M.C.A. 49–2–301.

Exhausting your administrative remedies– a tangled web – so watch out

Time limitations are harsh here, and before you can ever get to court, you must first exhaust your administrative remedies through the Department of Labor & Industry's Human Rights Commission.

The Montana Department of Labor and Industry (DLI) is the state agency that enforces Montana's discrimination laws. Within the DLI are the Human Rights Bureau, which receives and investigates complaints of discrimination, and the Hearings Bureau, which conducts hearings in discrimination cases. Appeals of the decisions of either of those Bureaus are heard by the Montana Human Rights Commission.

The Human Rights Bureau attempts to resolve each case of discrimination. Its mission is to provide technical assistance concerning discrimination law, to conduct impartial investigations, and issue determinations on the merits of each case. If the Human Rights Bureau finds that the preponderance of the evidence supports a finding of discrimination, it then attempts conciliation of the complaint. If conciliation is not possible, they then refer the complaint to the Hearings Bureau of the Department of Labor and Industry.

The Hearings Bureau then conducts a formal hearing and issues a decision on the complaint. For a chart showing the process involved, see http://erd.dli.mt.gov/Portals/54/Documents/Human-Rights/dli-erd-hr010.pdf.

180 Days to file – or else

A complaint must be filed with the Human Rights Bureau within 180 days (approximately 6 months) from the discrimination, or the date the discrimination was discovered. If a grievance was filed, such as through a collective bargaining agreement, you must file your complaint within 180 days of the conclusion of the grievance procedure if that grievance concluded within 120 days after the discrimination occurred or was discovered. If the grievance procedure does not conclude within those 120 days, then you have 300 days after the unlawful discrimination or discovery of discrimination.

If you do not file your timely complaint, it will not be considered. M.C.A. 49–2–501. End of story.

If you are lucky enough to file on time, you have gotten over just the first hurdle.

The Human Rights Bureau must then complete its investigation within 180 days.

If things are not going in your favor, you will eventually receive notice from the DLI/Commission. You then have only 90 days to file a civil action in the district court. If you don't, "the claim is barred." M.C.A. 49–2–512(3).

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