On August 3, 2020, the United States Equal Employment Opportunity Commission (EEOC) announced that it will resume issuing charge closure documents. The EEOC had suspended issuing charge closure documents on March 21, 2020 due to the pandemic, unless a charging party requested closing charge documents be issued. Although the EEOC has continued to investigate cases, accept charges, and otherwise attempt to enforce the nation’s Federal discrimination laws during the pandemic, it had not been issuing charge closure documents, until now.
Why is This Significant for Employers?
One of the charge closure documents issued by the EEOC is a Notice of Right to Sue, which is a document a charging party must have to file a lawsuit in Federal court alleging discrimination or retaliation. The charging party has 90 days to file a lawsuit in Federal court after receiving the Notice of Right to Sue. This administrative timeframe is strictly enforced and thus, kicks off a charging party’s right to go to court and file a federal or state lawsuit (in those states that require it as discussed below). Failure to file the related lawsuit within 90 days after receipt of the Notice of Right to Sue, however, blocks a charging party from proceeding with such claims in federal court.
State Time Limits May Be More Generous
The failure to file in Federal court within 90 days of the EEOC’s issuance of a Notice of Right to Sue may not totally preclude a charging party from filing a lawsuit against an employer as many state discrimination statutes allow more time for employees to file discrimination and related state claims. In some states, it is also not an initial requirement that an employee go through the administrative process before filing suit in state court. For example, Michigan’s discrimination statute, the Elliott-Larsen Civil Rights Act (ELCRA), has a three-year statute of limitations from the date of the alleged act of discrimination and an employee does not first have to exhaust federal administrative remedies before proceeding with a discrimination or retaliation claim under the ELCRA.
However, any employer that has a charge filed with the EEOC against it, or suspects that there may be a discrimination claim that could be presented, should be aware of the fact that the EEOC’s resumption of issuance of Notices of Right to Sue will trigger the 90 day filing period, which could serve as a defense to a Federal court lawsuit over a discrimination claim.
Employers with questions or concerns about this issue should feel free to contact us or one of the members of our Firm’s Labor and Employment Department to determine how this EEOC announcement may affect them.
About the Authors:
James B. Perry is a Member in Dickinson Wright’s Detroit office. He is a member of the firm’s labor and employment group. Perry has assisted employers in all areas of labor and employment law for 42 years. He can be reached at 313-223-3096 or jperry@dickinsonwright.com and you can visit his bio here.
Sara H. Jodka is a Member in Dickinson Wright’s Columbus office. She is a member of the firm’s labor and employment group and also a member of the firm’s cannabis practice group, which boasts over 40 attorneys practicing in the cannabis space. She can be reached at 614-744-2943 or sjodka@dickinsonwright.com and you can visit her bio here.
