Discrimination Charge Response · South Carolina

South Carolina is a “deferral state”: its own civil-rights agency, the South Carolina Human Affairs Commission (SCHAC), enforces a state anti-discrimination law. That gives an employee up to 300 days, not 180, to file a Title VII, ADA, ADEA or PWFA charge with the EEOC. A GINA (genetic information) charge must still be filed with the EEOC within 180 days, because the state law does not cover genetic information, and a charge filed with SCHAC is due within 180 days (S.C. Code § 1-13-90). The South Carolina employment lawyers at Bettis Law Group defend employers through the charge process. This guide is written for private employers; state agencies, local governments and federal agencies follow different rules on several points, and a short section near the end flags the main ones.

By Bettis Law Group, LLP · Columbia, South Carolina

The fast version for employers:

  • A charge usually comes before a lawsuit. Claims under Title VII, the ADA, the ADEA, GINA, the Pregnant Workers Fairness Act and the South Carolina Human Affairs Law start with a charge filed with the EEOC or SCHAC. Equal Pay Act claims are the exception: they can go straight to court.
  • Up to 300 days at the EEOC, with one exception. Because South Carolina is a deferral state, the EEOC charge deadline is up to 300 days for Title VII, ADA, ADEA and PWFA charges. GINA (genetic information) charges stay at 180 days, because the South Carolina Human Affairs Law does not cover genetic information. The SCHAC deadline is 180 days (§ 1-13-90). Do not conflate the EEOC and SCHAC clocks.
  • Federal suit deadlines differ by law. Under Title VII, the ADA, GINA and the PWFA, the employee has 90 days after receiving the notice of right to sue. Under the ADEA, no notice is required: the employee may sue 60 days after filing the charge, and must sue within 90 days of receiving notice that the EEOC has dismissed or otherwise ended it.
  • The state deadline is “whichever comes first.” A suit against a private employer under the South Carolina Human Affairs Law must be filed within one year of the alleged violation or 120 days after SCHAC dismisses the charge, whichever comes first (§ 1-13-90(d)(6)).
  • Watch retaliation. It is the basis most often alleged in EEOC charges, and filing a charge is protected activity even if the underlying claim fails.

For a South Carolina employer, an EEOC or SCHAC charge is a manageable event, but only if it is handled correctly and early. The deadlines, the dual federal-state structure and the position-statement process all have traps for the unwary. The South Carolina employment lawyers at Bettis Law Group represent employers through the charge process and the litigation that can follow.

A Charge Comes Before a Lawsuit (Under the Laws the EEOC Enforces)

Before an employee can sue under Title VII, the ADA, the ADEA, GINA, the Pregnant Workers Fairness Act (PWFA) or the South Carolina Human Affairs Law (SCHAL), the employee must first file a Charge of Discrimination with the appropriate agency, a step known as exhausting administrative remedies. For employers, the charge stage is the first, and often the best, opportunity to shape the outcome.

Among the laws the EEOC enforces, the one exception is the Equal Pay Act. An employee can sue under it without filing a charge or receiving a notice of right to sue. The suit must be filed within two years after the claim accrues, or three years for a willful violation (29 U.S.C. § 255(a)), and filing an EEOC charge does not pause that clock.

A missing or late charge gives the employer a defense that it must raise promptly: the Supreme Court has held that Title VII’s charge requirement is not jurisdictional, so an employer that waits can forfeit the defense (Fort Bend County v. Davis, 587 U.S. 541 (2019)).

Two agencies are involved:

  • the federal Equal Employment Opportunity Commission (EEOC); and
  • the state South Carolina Human Affairs Commission (SCHAC).

The 300-Day Deadline (and Why South Carolina Is Different)

The deadline to file a charge is the single most misunderstood part of the process.

  • The federal baseline is 180 calendar days from the discriminatory act.
  • That baseline is extended to up to 300 calendar days when a state or local agency enforces a law prohibiting the same discrimination. Because SCHAC enforces the South Carolina Human Affairs Law, South Carolina is a “deferral state,” and the EEOC charge deadline here is up to 300 days for Title VII, ADA, PWFA and age (ADEA) claims: the earlier of 300 days after the act or 30 days after the employee receives notice that the state agency has ended its proceedings (42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(1)(B)). (The extension reaches age claims because the Human Affairs Law also prohibits age discrimination against workers 40 and older, and it reaches PWFA claims because that law also requires reasonable accommodation of medical needs arising from pregnancy, childbirth or related conditions.)
  • Genetic-information (GINA) charges are the exception. The Human Affairs Law does not cover genetic information, so the extension does not apply, and a GINA charge must be filed with the EEOC within 180 days.
  • Pay claims work differently. Under Title VII, the ADA and the ADEA, each paycheck that reflects a discriminatory pay decision counts as a new violation, so the charge clock can restart with every paycheck (42 U.S.C. § 2000e-5(e)(3)(A); 29 U.S.C. § 626(d)(3)).

Separately, a charge filed with SCHAC to preserve state-law claims is due 180 days after the alleged discriminatory practice occurred (S.C. Code § 1-13-90).

These two clocks are not interchangeable. Missing SCHAC’s 180-day deadline can cost the employee the state-law claims, while the federal claims may still be timely at the EEOC. For employers, the practical point is that most charges can reach back up to 300 days, so records made at the time of a decision matter long before any charge arrives.

Dual-Filing and Worksharing

The EEOC and SCHAC operate under a worksharing agreement, so a charge filed with one agency is typically dual-filed with the other to preserve rights under both federal and state law, though each agency’s own deadline still applies. Expect a charge filed in one forum to implicate both.

Who Is Covered: The Employee-Count Thresholds

These laws do not apply to every employer, and the thresholds are a frequent point of confusion. Where a law sets a minimum number of employees, the minimum is met only if the employer had that many employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year (42 U.S.C. § 2000e(b); 29 U.S.C. § 630(b); S.C. Code § 1-13-30(e)). A single day’s headcount does not decide coverage.

  • Title VII, the ADA, GINA and the PWFA cover employers with 15 or more employees.
  • The ADEA (age 40 and older) covers private employers with 20 or more employees and state and local governments of any size.
  • The South Carolina Human Affairs Law has its own minimum of 15 employees (S.C. Code § 1-13-30(e)), and for a private employer it follows the matching federal threshold for each kind of claim it covers (§ 1-13-100): 15 or more employees for claims based on race, color, religion, sex, national origin or disability, and 20 or more for age claims.

Note also that in Bostock v. Clayton County, 590 U.S. 644 (2020), the U.S. Supreme Court held that firing an employee for being gay or transgender is discrimination “because of sex” under Title VII.

How a Charge Ends, and the Deadlines to Sue

The EEOC can close a charge in several ways:

  • If it is unable to conclude that there is reasonable cause to believe discrimination occurred, it issues a Dismissal and Notice of Rights, commonly called a right-to-sue letter, which does not certify that the employer complied with the law.
  • If it finds reasonable cause to believe discrimination occurred, it first tries to resolve the charge through conciliation. If conciliation with a private employer fails, the EEOC may sue the employer itself; if it does not, the employee receives a notice of right to sue.
  • The employee can also ask for a notice of right to sue before the investigation ends. In a case against a private employer under Title VII, the ADA, GINA or the PWFA, once the charge has been pending 180 days, the EEOC must promptly issue the notice on the employee’s written request (29 C.F.R. § 1601.28(a)(1)). The statute does not entitle the employee to that notice if the EEOC has already sued the employer on the charge or has entered into a conciliation agreement to which the employee is a party (42 U.S.C. § 2000e-5(f)(1)).

The deadline to sue then depends on the law:

  • Title VII, the ADA, GINA and the PWFA: suit must be filed within 90 days of receiving the notice of right to sue.
  • The ADEA: the employee must file a charge but does not need a right-to-sue notice. The employee may sue once 60 days have passed since the charge was filed (29 U.S.C. § 626(d)(1)). If the EEOC dismisses or otherwise ends the charge, suit must be filed within 90 days of receiving that notice (§ 626(e)).
  • The South Carolina Human Affairs Law: an employee may sue a private employer in state circuit court if SCHAC dismisses the charge, or if, within 180 days after the charge is filed, the Commission has not filed an action or entered into a conciliation agreement to which the employee is a party. The suit must be filed within one year of the alleged violation or 120 days of the dismissal, whichever comes first (S.C. Code § 1-13-90(d)(6)). The employer can extend that period by written consent.

These are the key deadlines for these claims. Other claims carry their own limits, and doctrines such as tolling or a continuing violation can change the timing.

How a South Carolina Employer Should Respond to a Charge

Receiving a charge is not the same as losing one. A disciplined response protects the business:

  • Preserve documents. Put a litigation hold in place immediately so relevant records are not altered or destroyed.
  • Write the position statement for two readers. The EEOC notifies the employer within 10 days of a charge being filed and may ask for a written position statement, which is due by the deadline in the EEOC’s request; if you need more time, ask before that deadline. That statement is your first substantive opportunity to present your side, supported by documentation: the facts, and the legitimate reasons for the decision or the steps you took, depending on the charge. Write it expecting the employee to read it: on request, the EEOC gives the employee the position statement and its non-confidential attachments, and the employee gets a chance to respond, on a deadline the EEOC sets.
  • Handle confidential material the way the EEOC requires. Refer to confidential information in the position statement without disclosing it, and put the information itself in separate attachments labeled by type: “Sensitive Medical Information,” “Confidential Commercial Information,” “Confidential Financial Information” or “Trade Secret Information.” Social Security numbers, irrelevant personal information about witnesses, comparators and other third parties, and references to charges other people have filed against the employer also belong in separate attachments. Explain why each attachment is confidential; the EEOC will not accept blanket or unsupported confidentiality claims. Note one limit: the EEOC does not treat the charging employee’s own medical information as sensitive or confidential medical information in the investigation.
  • Consider mediation. The EEOC may offer mediation, which can resolve a charge early. EEOC mediation is confidential: the mediator and the parties sign confidentiality agreements, and what is said in mediation cannot be used in the EEOC’s investigation. Whether the terms of a settlement stay confidential is a separate question that depends on the settlement agreement and applicable law.
  • Guard against retaliation. Retaliation is the basis most often alleged in EEOC charges. Filing a charge, or taking part in an EEOC or SCHAC investigation or proceeding, is protected activity even if the underlying claim fails. An internal complaint is protected as opposition when it rests on a reasonable, good-faith belief that the conduct was unlawful and is made in a reasonable manner. Protected activity does not shield an employee from legitimate, non-retaliatory discipline, so document the reasons for any action you take.
  • Know what the damages caps do and do not limit. Under 42 U.S.C. § 1981a, which GINA and the PWFA adopt (42 U.S.C. §§ 2000ff-6(a)(3), 2000gg-2(a)(3)), compensatory and punitive damages under Title VII, the ADA, GINA and the PWFA are capped by employer size, measured by the number of employees in each of 20 or more calendar weeks in the current or preceding calendar year: from $50,000 for employers with 15 to 100 employees up to $300,000 for employers with more than 500. The caps limit only part of a possible award. They do not reach back pay, interest on back pay or other relief authorized under Title VII’s § 706(g) (§ 1981a(b)(2)), and that relief includes front pay (Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001)). The court may also award attorney’s fees separately (under Title VII, 42 U.S.C. § 2000e-5(k)).
  • Engage counsel early. The position statement and the decisions made in the first weeks often shape the entire matter.

If You Are a Public Employer

For public employers, the main differences from the rules above include:

  • The federal age law, the ADEA, covers state and local governments of any size.
  • Under Title VII and the laws that use its procedures (the ADA, GINA and the PWFA), the U.S. Attorney General, rather than the EEOC, decides whether to sue a state or local government.
  • Under the same laws, punitive damages are not available against a government employer.
  • State agencies can raise sovereign immunity, which bars some private suits for money damages under the federal age and disability laws (Kimel v. Florida Board of Regents, 528 U.S. 62 (2000); Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001)).
  • Complaints against a state agency or department go through SCHAC’s own investigation-and-hearing process (S.C. Code § 1-13-90(c)) rather than the circuit-court route.
  • The personal staff, policy-making appointees and immediate advisers of state and local elected officials use a separate federal process, with a 180-day deadline (42 U.S.C. § 2000e-16c).
  • Federal agencies follow the federal-sector process, which generally starts with the employee contacting an agency EEO counselor within 45 days (29 C.F.R. § 1614.105(a)).

These differences turn on the employer and the claim, so public employers should get advice specific to their situation.

Frequently Asked Questions

How long does an employee have to file an EEOC discrimination charge in South Carolina? Up to 300 days for Title VII, ADA, ADEA and PWFA charges, and 180 days for GINA (genetic information) charges. Because South Carolina has a state civil-rights agency (SCHAC) that enforces a state anti-discrimination law, it is a deferral state, which extends the EEOC deadline from the 180-day baseline to up to 300 days for discrimination that law also covers. The South Carolina Human Affairs Law does not cover genetic information, so GINA charges stay at 180 days.

Is the SCHAC deadline the same as the EEOC deadline? No. A charge filed with SCHAC under S.C. Code § 1-13-90 is due within 180 days. The EEOC deadline in South Carolina is up to 300 days for Title VII, ADA, ADEA and PWFA charges and 180 days for GINA charges. Missing the 180-day SCHAC deadline can forfeit state-law claims even though federal claims may survive.

How soon can an employee sue after filing a charge? It depends on the law. Under Title VII, the ADA, GINA and the PWFA, the employee needs a notice of right to sue, which issues when the charge is closed or, in a case against a private employer, on the employee’s written request once the charge has been pending 180 days; suit must be filed within 90 days of receiving it. Under the ADEA, the employee may sue once 60 days have passed since the charge was filed, without a notice. Under the South Carolina Human Affairs Law, an employee may sue a private employer after SCHAC dismisses the charge, or if, within 180 days after the charge is filed, the Commission has not filed an action or entered into a conciliation agreement to which the employee is a party. The employee must sue within one year of the alleged violation or 120 days of the dismissal, whichever comes first. An Equal Pay Act claim needs no charge at all.

Are employers with fewer than 20 employees covered for age discrimination in South Carolina? A private employer with fewer than 20 employees is not covered for age discrimination by either law. The federal ADEA applies to a private employer with 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and under S.C. Code § 1-13-100 the South Carolina Human Affairs Law creates no age claim against an employer the ADEA does not cover. State and local governments are covered by the ADEA at any size (Mount Lemmon Fire District v. Guido, 2018).

What should an employer do first after receiving a charge of discrimination? Preserve relevant documents through a litigation hold, prepare a careful position statement supported by documentation and written with the employee as a likely reader, make sure the employee who filed suffers no retaliation, and consult employment counsel early. The first response often shapes the outcome.

Request an Appointment with a South Carolina Employment Lawyer at Bettis Law Group

If your business has received an EEOC or SCHAC charge, or you want to be prepared before one arrives, the South Carolina employment lawyers at Bettis Law Group can help you respond effectively. To speak with an experienced South Carolina employment lawyer in confidence, call (803) 799-9311 or request an appointment online today. You can also learn more about our harassment and discrimination practice.

This article is general legal information, not legal advice, and does not create an attorney-client relationship. Federal and South Carolina employment laws change, agencies update their rules, and every situation turns on its specific facts. Consult a licensed South Carolina employment attorney about your business’s situation.