EEOC Pauses Right-To-Sue Notices Amid COVID-19 Pandemic

By Vin Gurrieri
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Law360 (April 7, 2020, 10:47 PM EDT) -- The U.S. Equal Employment Opportunity Commission confirmed Tuesday that it has largely paused its issuance of key notices that start the clock for workers to sue their employers for bias, the same day that civil rights advocates urged the agency to do more to safeguard workers' ability to pursue claims during the novel coronavirus pandemic.

The anti-discrimination watchdog has "temporarily suspended the issuance of charge closure documents" that typically accompany its completion of an investigation of bias, harassment or retaliation charges filed by aggrieved workers unless the workers ask the agency for them, according to an EEOC spokeswoman. 

When the EEOC concludes an investigation 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 bias took place. That also gives workers permission to file a federal court suit within 90 days. 

In a lengthy emailed statement confirming the agency's action, EEOC spokeswoman Kimberly Smith-Brown cited the concern that some people who have pending charges may have the belief that they might have to "choose between jeopardizing their safety and protecting their right" amid the ongoing COVID-19 pandemic. 

For federal sector workers, the EEOC has given both complainants and agency officials guidance "to provide similar needed flexibilities," according to the agency's spokeswoman, whose statement also said that the EEOC is still continuing to accept charges that are submitted online or by phone and is working "to educate the public regarding the use of these systems."

"During the COVID-19 pandemic, the EEOC is continuing our mission of advancing equal employment in the workplace and enforcing our anti-discrimination laws, while taking steps to preserve the safety and well-being of our employees and people who believe they have experienced employment discrimination," Smith-Brown wrote in Tuesday's statement. 

A group of more than 80 civil rights groups led by the National Women's Law Center mentioned in a letter they sent to EEOC chair Janet Dhillon on Tuesday that they recently learned from an employee at the American Civil Liberties Union that the EEOC had stopped issuing the right-to-sue letters in late March unless a charging party specifically asked for it but that the agency hadn't publicly announced the change. 

The coalition, which includes a wide range of workers' advocacy organizations and plaintiffs' side law firms, sent the letter to urge the EEOC to be more proactive in ensuring that aggrieved workers don't miss key filing deadlines because of the havoc that COVID-19 has wreaked on the legal system. 

While the coalition applauded the EEOC's move on right-to-sue notices, it also implored the agency to make the change official on its website and in its public communications, clarify the date it adopted the policy and pledge that such notices won't be issued absent a request by a charging party while states of emergency are in effect. 

The coalition said in its letter that workers desperate for paychecks, especially those in low-wage jobs who are often women, people of color or individuals with disabilities, are more susceptible to being illegally exploited or discriminated against during the pandemic. They also said that many courts are either closed or are limited in the ability to process legal filings, and that many law offices may be similarly hindered in their ability to adhere to deadlines, all of which makes it harder for workers to pursue claims.

"For charging parties who are represented, lawyers may not be in their offices or checking physical mail and so may not know about the right-to-sue notices," the coalition said in its letter. "Charging parties who do not already have a lawyer and received these notices will face extreme difficulty finding, retaining, or paying for a lawyer, because many lawyers' offices are closed, and many individuals are already facing severe financial impacts from the current crisis."

Besides asking for a moratorium on right-to-sue notices, the civil rights coalition also pushed the EEOC to rescind and reissue any right-to-sue notices that have been issued that would require suits to be filed after Feb. 29, 2020, which was the date when Washington became the first state in the country to issue a state of emergency related to COVID-19. 

"Tolling the deadlines in the right-to-sue notices is necessary to preserve the rights of workers who are facing unprecedented obstacles when trying to enforce their equal employment opportunity rights," the groups said. 

Moreover, the coalition asked the EEOC to toll deadlines that apply to federal workers who seek to pursue equal employment opportunity allegations, and work to extend the time period all workers have to file charges with the EEOC alleging that they were mistreated by their employer after an incident occurs. 

On the latter issue, the coalition acknowledged that the EEOC doesn't have the power on its own to change the deadlines since those are set by law, but said the agency can urge lawmakers to toll existing deadlines as needed. 

"Meanwhile, on its own, the EEOC should, at a minimum, create a dedicated telephone number where workers and attorneys facing this deadline can call and leave a message; that contact should count as meeting the required deadline and the charge can be perfected at a later date," the groups said. "Similarly, the EEOC should create and distribute widely a shorter version of the charge form (requiring name, contact information, the date, and the name of the employer) and allow that to be submitted to meet the required deadline with a completed charge to follow."

The coalition argued that the steps it suggested the agency take are necessary since measures imposed by public health officials to slow the spread of COVID-19 such as social distancing and the closure of certain businesses have created "insurmountable difficulties" for workers who want to pursue discrimination claims, particularly if they have family members who are infected with COVID-19.  

Given the numerous other bread-and-butter concerns those workers have on their minds amid the pandemic, contacting the EEOC if they've had to endure workplace bias is likely to be low on their list of priorities, the coalition also said. 

"Although they may have been discriminated against, these workers will rightfully be concerned with holding onto their jobs, caring for their families, and filing for unemployment benefits and other ways to ensure their financial stability before trying to reach out to the EEOC," according to Tuesday's letter. 

In addition to the NWLC, the coalition includes numerous civil rights groups such as the NAACP, Lambda Legal and the Lawyers' Committee for Civil Rights Under Law as well as various plaintiffs' side law firms like Mehri & Skalet PLLC and Spencer Johnson McCammon LLP. 

--Editing by Jay Jackson Jr.

Update: This story was updated to include additional details about the EEOC's pre-suit process. 

For a reprint of this article, please contact reprints@law360.com.

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