Commentary & Analysis
Remember the old joke that the three biggest lies are: “It’s on the truck,” “The check is in the mail” and “I’m from Washington and I’m here to help you”? Now you can add another one, according to Robin Shea, a partner with the law firm of Constangy Brooks Smith & Prophete: “These proposed regulations are just a formality.”
On Feb. 21 the U.S. Equal Employment Opportunity Commission issued proposed regulations dealing with digital transmission of legal documents which it said is intended to “to clarify the filing deadline for charges filed in locations where a state or local fair employment practices agency exists but does not have jurisdiction over the statutory basis for a charge.”
In addition, the rules proposal would clarify that when the agency issues a “no cause” determination, that doesn’t mean the employer “won,” which it says is already the case. It says the new rules would only make cosmetic changes to the wording on its Dismissal and Notice of Rights form which the agency explains should make this point more clear.
Shea agrees that all a “no cause” determination means is that the EEOC will issue a dismissal and notice of rights. “The person who filed the charge still has 90 days from receipt of the notice to file suit alleging discrimination based on the allegations in the charge, and many will do so,” she says.
Sounds like these are only some pretty boring housekeeping changes, doesn’t it? But not so fast, warns Shea. Another section also seems fairly harmless at first blush. It would clarify the time for filing a charge in “deferral” states. When a state has its own fair employment practices agency, such as a state EEO agency, the individual bringing the claim against an employer gets 300 days from the date of the incident of discrimination to file a charge instead of the usual 180 days.
Under the proposed regulations, a claimant in a deferral state would get only 180 days to file a charge if that state’s fair employment law didn't apply to the discrimination alleged. For example, if the state statute doesn’t prohibit discrimination based on religion, then an employee filing a religious discrimination charge in that state would have 180 days to file a claim with the federal EEOC instead of 300 days.
However, if the state law covers the general category of discrimination being claimed, such as religious discrimination, but the claimant alleges a specific violation that is not recognized under the state statute, such as religious accommodation, then the individual would still get the full 300 days to file a charge “on the theory that law is hard for lay persons, and he or she was at least in the ballpark,” Shea says.
Shea assumes this means that if a state law prohibits sex discrimination but not discrimination based on sexual orientation or gender identity, and if the claimant alleges discrimination based on sexual orientation or gender identity, the claimant will have 300 days to file the charge because, in the federal EEOC’s view, discrimination based on sexual orientation or gender identity is a form of sex discrimination.
Hidden Time Bombs
“The EEOC’s digital charge system makes the EEOC more accessible and more transparent to the public,” said EEOC Acting Chair Victoria A. Lipnic in the commission’s press release announcing the proposed changes. “We encourage the public to provide candid feedback on these updates to our procedural rules as part of the agency’s move to online services.”
What Lipnic failed to mention is that under the EEOC rules proposal the commission would be allowed on its own to “reconsider” a no-cause finding, Shea notes. The proposed regulations would allow the commission, or director of the EEOC office issuing the original determination, to decide on their own to “reconsider” a determination of no cause.
“This could be done even if the 90-day period for filing suit had already expired. If the 90-day period is still running, the issuance of a notice of reconsideration would temporarily ‘revoke’ the individual’s right to sue,” she stresses.
If the 90-day period is over, or if the claimant has already filed suit or taken certain other actions, the right to sue would not be revoked, but the no-cause determination would be vacated. Once EEOC issues a re-determination, it would issue a notice to the parties, and if the right to sue had been “revoked,” a new 90-day period for filing suit would start running from the claimant’s receipt of the new notice. Got that?
There also is no provision in the proposed rules for the parties to submit additional information, documents, or arguments during the reconsideration period, which is something lawyer Shea says she doesn’t like at all.
Another proposed change appears to have added a completely new provision to the regulations saying that age discrimination charges can be filed by someone acting on behalf of the individual bringing the charge, but that the name of the claimant does not have to be included in the charge or disclosed to the employer.
Although the individual’s name does have to be provided to EEOC (just not included on the charge itself), and can be shared with other government agencies, the claimant can request to remain anonymous. There is nothing in the proposed rules that says the claimant’s name will ever be disclosed to the employer.
Comments will be accepted until April 23 and one way to possibly defuse these ticking time bombs is to file comments on the proposed rules. However, those objections may fall on deaf ears unless there is a change in the composition of the commission courtesy of the U.S. Senate.
“Even though the EEOC doesn’t have a quorum right now, the proposed regulations were approved on Dec. 4, 2018, when they still had one—consisting of three Obama appointees and two vacant slots,” Shea concludes. “It is still the case that not one Trump nominee to the commission has been confirmed. As a result, the proposal passed unanimously.”