Can I File an EEOC Claim if I’m Not a Member of a Protected Class?

If you’re not a member of a protected class, can you still file an EEOC claim?

The short answer is yes, but there are some things you should know first.

In this article, we’ll discuss what protected classes are and when you can file a claim even if you aren’t being targeted because of your protected class. We’ll also cover some basics on EEOC claims, including retaliation.


What is an EEOC Claim, and Who Can File One?

The U.S. Equal Employment Opportunity Commission, or EEOC, is a federal agency charged with enforcing anti-discrimination laws in the workplace. One of the ways it does this is by handling discrimination complaints (or claims) filed by employees.

If an employee is a member of a protected class and believes they have been a victim of discrimination, they can file an EEOC claim or a TWC claim with the Texas Workforce Commission – Civil Rights Division, which oversees the same issues as the EEOC. 

The EEOC will then attempt to resolve the issue through mediation between the employer and employee, investigate the claim and, if it finds evidence of discrimination, concludes its process with a dismissal notice for the employee. The notice may include request for the parties to participate in a voluntary and confidential conciliation process, in hopes that a settlement can be obtained. Otherwise the EEOC may file a lawsuit on behalf of the employee, or provide the employee with a dismissal that will likely include a Right to Sue, enabling the employee to file a lawsuit in court within a specific period of time.


What Qualifies as a Protected Class?

It is illegal to discriminate against a job applicant or employee on the basis of certain protected characteristics that are beyond a person’s control.

These characteristics, known as protected classes, are defined by law and include (but are not limited to):

  • Race,
  • Color,
  • Religion,
  • Sex (including acts of sexual harassment),
  • National origin,
  • Disability, 
  • Genetic information, and
  • Age (40 or older).

While the list of protected classes varies from state to state, the above classes are protected throughout the United States. Protected class status is important because it gives employees and applicants the right to file an EEOC/TWC claim if they believe they have been the victim of discrimination. For example, an employee who is not hired for a job because of their race could file an EEOC claim alleging racial discrimination.  

Most of the laws governing discrimination protect all members of a protected class. For example, a person of any religion could potentially bring a claim of religious discrimination. However, disability discrimination and age discrimination laws only protect certain members of those protected classes. A person without a disability cannot bring a discrimination claim for not being disabled, nor can a person under 40 bring a claim for age discrimination.  

While protected class status is an important factor in determining whether someone can file an EEOC claim, it is not the only factor. The EEOC and TWC also consider whether the employer has a policy or practice that disproportionately affects employees in a protected class. For example, if an employer has a policy of only hiring recent college graduates, this may disproportionately affect older workers and could be found to be discriminatory. Such policies can indicate a pattern of discriminatory behavior and lend credence to an EEOC/TWC complaint. 


Some EEOC Claims are Available to Everyone, Not Just Members of a Protected Class

The EEOC plays a vital role in ensuring that all workers are treated fairly, not just those of certain protected classes. Some of the claims that are available to everyone are those that involve whistleblowers and retaliation. 

It’s worth noting that whistleblowers and retaliation claims are not mutually exclusive; in fact, they often go hand-in-hand. Let’s take a closer look at how these claims work.


A whistleblower is an employee who reports discrimination, harassment, or other unlawful behavior that has occurred in the workplace. Whistleblower complaints can be filed by any employee, regardless of protected class status. For example, a Black employee that witnesses harassment against her Hispanic coworkers can file a whistleblower complaint on behalf of those coworkers, even if the Black employee is not experiencing discrimination herself. 

There are several reasons an employee, even one who is not a member of a protected class, might want to file a whistleblower complaint. First, filing a complaint and reporting the unlawful behavior can help stop the discriminatory behavior from continuing. It can also provide relief for the victim of discrimination, and it can send the message to other employers and employees that discrimination will not be tolerated in the workplace. In some cases, whistleblowers may even be eligible for financial compensation.


Workplace retaliation occurs when an employer takes negative action against an employee who engaged in a protected activity, such as: 

  • Filing a discrimination complaint
  • Asking for an accommodation for a disability, pregnancy, or religious reason
  • Whistleblowing
  • Filing a complaint that overtime has not been paid
  • Taking leave under the Family and Medical Leave Act (FMLA)
  • Refusing to participate in an illegal act
  • Participating in an EEOC investigation

Common forms of retaliation include termination, demotion, and denial of benefits. 

Any person can file a retaliation claim if their employer took adverse action against them for filing a complaint, reporting certain unlawful activity, or participating in an EEOC investigation. Not only can filing a retaliation claim discourage future instances of retaliation, but it may also result in compensation (or other relief) for the claimant.


Jackson Spencer Can Help With Filing a EEOC Claim

If you have been a victim of workplace retaliation or want to blow the whistle on unlawful conduct, it is important to speak with an experienced employment law attorney. 

At our employee rights law firm, our experienced attorneys can assess your case and may help you determine the best course of action. And if you decide to move forward, we’ll stand by your side as zealous advocates to ensure you have the best chance of success. 

Contact us today for a free consultation.