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What if the lawsuit is not timely filed

As we discussed with respect to the filing of an administrative charge, these same exceptions sometimes apply to excuse someone who filed his or her lawsuit too late. For a more detailed discussion of these exceptions, review the above section on filing an administrative charge.

1. The continuing violation exception.  This exception usually applies to gender harassment cases that do not require the filing of an administrative charge.

2. The waiver exception. This exception applies if the employer is aware of the fact that the employee did not timely file his lawsuit and the employer fails to raise the defense of the statute of limitations. If the defense is not timely raised, then the court may decide that the employer has waived its rights to raise the defense.

3. The equitable estoppel exception. If the employee has been misled by the employer into not timely filing his lawsuit, then the equitable estoppel exception may apply.
    

4. The equitable tolling exception. In situations where the employer has not caused the employee to file his lawsuit too late, but there are other circumstances beyond the employee's control that caused the lawsuit to be filed too late, then the equitable tolling of the statute of limitations may apply.
   
   However, at least the Fourth and Tenth Circuits have held that continuing violation does not apply to the time limit for filing a lawsuit (only the time limit for filing an administrative charge). See, Kornegay v. Burlington Indus., Inc., 803 F.2d 787 (4th Cir. 1986) and Thomas v. Denny's, Inc., 111 F.3d 1506 (10th Cir. 1997).

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