EEOC Resumes Issuing Notices Allowing Workers to Sue Employers

Key Takeaways

• The EEOC has resumed issuing charge closure documents to employees who have raised allegations of discrimination, harassment, and retaliation against employers

• The agency had paused issuing charge closure documents in March with the onset of the coronavirus pandemic in the U.S.

• The EEOC will issue five months of delayed notices of rights to sue over the next six-to-eight weeks, which is likely to cause significant administrative strain

• Some charging parties receiving dismissals and notices of rights to sue will file lawsuits, increasing the number of new cases facing employers and burdening courts

Employees awaiting the go-ahead from the Equal Employment Opportunity Commission (EEOC) to sue their employers over allegations of discrimination, harassment, and retaliation will soon hear from the agency on next steps.

The EEOC resumed issuing charge closure documents effective Monday, August 3, 2020, an action the agency paused in March due to the coronavirus pandemic. Charge closure documents indicate that the agency has completed reviewing an employee’s allegations, and explain what they can do next.

When the EEOC concludes a probe of allegedly unlawful behavior, it can issue a number of notices to potential claimants that start a countdown for when they can file suits. One such document, known as a right-to-sue notice, is generally issued when the EEOC finds reasonable cause to believe that discrimination occurred but was unable to resolve the charge as part of the pre-suit conciliation process and doesn’t sue the employer on its own. It gives the aggrieved worker 90 days to file suit.

At the end of an investigation, the EEOC can also issue a so-called dismissal and notice of rights if it is unable to determine whether there is reasonable cause to believe that unlawful conduct took place. That also gives workers permission to file a federal court suit within 90 days.

In its August 3 announcement, the EEOC acknowledged that a continued delay could negatively affect both parties’ ability to protect and exercise their rights. The EEOC will issue delayed notices of rights to sue over the next six-to-eight weeks, beginning with those that have been in suspense the longest. The timing for completing work on issuing suspended notices of rights to sue corresponds with the EEOC’s fiscal year, which ends on September 30, 2020. These notices of rights to sue will be sent by U.S. Mail.

Some implications from this announcement:

• Over the years, the EEOC has worked hard to reduce its inventory of open charges of discrimination. Based on the EEOC’s commitment to issue almost five months of suspended right-to-sue notices in six-to-eight weeks, the EEOC may be stretched thin administratively while it focuses on issuing the suspended notices.
• Some charging parties receiving dismissals and notices of rights to sue will follow through and file lawsuits, thus increasing the number of new cases for courts and companies.

If you have any questions on how this may affect you, please contact:

• Scott R. Green
• Caroline J. Berdzik
• Peter J. Woo
• Kristin Klein Wheaton
• Or another member of our Employment and Labor practice