1) The
EEOC must serve the charge on the
respondent within 10 days of the
filing of the charge. See
42 U.S.C. §2000e-5(e)(1);
42 U.S.C. §12117(a);
29 C.F.R. §1601.14(a).
2) The Commission is authorized to investigate the
allegations of the charge, including requiring the Charging Party to provide a statement identifying when and how they believe they were
discriminated against, and the facts which lead the person to believe that they were
discriminated against. See
42 U.S.C. §2000e-5(b);
42 U.S.C. §12117(a);
29 U.S.C. §626(d);
29 C.F.R. §1601.15.
3) The Respondent typically is asked to provide a
Statement of Position responding to the
allegations of the charge, and the
EEOC can request documents and interview
witnesses.
4) The Commission has the
authority to
issue administrative
subpoenas compelling the production of
witnesses and documents. See
29 C.F.R. §1601.16(a).
5) Upon completion of its investigation, the
EEOC has no
authority to
issue a
binding determination against any Respondent other than a Federal agency.
6) If the Commission determines that there is reasonable
cause to believe that a violation has occurred, the Commission will invite the
parties to attempt to resolve the allegedly unlawful practice through
conciliation. See
42 U.S.C. §2000e-5(b);
42 U.S.C. §12117(a);
29 U.S.C. §626(d);
29 C.F.R. §1601.21 (reasonable
cause) and
§1601.24 (
conciliation).
7) If
conciliation fails, the
EEOC will notify the
parties of that fact (
29 C.F.R. §1601.25).
8) At this stage, the
EEOC may file suit on behalf of the charging
party or
issue a
Notice of Right to Sue (a/k/a Dismissal and Notice of Rights). See
29 C.F.R. §601.27 and
§1601.28(b).
9) A charging
party also may request the issuance of a
Notice of Right to Sue from the
EEOC where the charge has been pending for at least 180 days or the Commission determines that it is unlikely to complete its investigation within 180 days. See
29 C.F.R. §1601.28(a)(1) and (2). There is a split among the Circuits as to the validity of early Notices of Right to Sue, and the Supreme Court has not yet addressed the
issue. Compare
Martini v. Federal National Mortgage Association, 175 F.3d 1336 (D.C. Cir. 1999), cert.
dismissed, 528 U.S. 1147 (2000) (holding that the Notice and the authorizing
EEOC regulation are
void, vacating the jury
verdict after five years of
litigation, and sending the
case back to the
EEOC) with
Brown v. Puget Sound Electrical Apprenticeship & Training Trust, 732 F.2d 726, 729 (9th Cir. 1984), cert. denied, 469 U.S. 1108 (1985) (upholding the same
EEOC regulation) and
Sims v. Trus Joist MacMillan, 22 F.3d 1059, 1061-63 (11th Cir. 1994) (same). Some
courts invalidating the regulation have simply required the
action to be
held in
abeyance while the
case is re-submitted to the
EEOC for the number of days necessary to make the full 180 days. E.g.,
Spencer v. Banco Rela, S.A., 87 F.R.D. 739,741-48 (S.D. N.Y. 1980). The Supreme Court has referred to the “early
notice” regulation in passing, but without ruling on its validity.
EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 595 n.6 (1981). Most lower-
court decisions do not mention this reference.
10) Although the Commission has the
authority to
issue substantive “No Cause” determinations, the Commission currently does not do so and instead
issues determinations that it is unable to conclude that there was reasonable
cause.
11) In every instance where the Commission elects not to file suit, the charging
party is entitled to a
notice of right to sue. See
29 C.F.R. §1601.28(b).
12) The
notice of right to sue should contain the Commissions determination on the charge and the date of service of the
notice. See e.g.,
29 C.F.R. §1601.28(e).
13) The charging
party has 90 days from receipt of the
notice of right to sue to file suit. See
42 U.S.C. §2000e-5(f);
42 U.S.C. §12117(a);
29 U.S.C. §626(e).
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
Item 12-B | EEO Law Basics
