As a precursor to filing a lawsuit under the laws that the EEOC enforces such as Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act,  employees must first file a charge of discrimination with the EEOC. As it stands now, the vast majority of these charges are dismissed by the EEOC. But not because these charges lack merit. The dismissal is often necessitated by a lack of resources and investigators. Often times this leaves the EEOC unable to conduct a proper investigation into the thousands of charges that are filed each year with the federal agency.

At this moment, the EEOC is on the precipice of making two major changes to the process of how the federal agency is going to handle the dismissal of charges of discrimination. These changes will include a change in the procedures in which the dismissals are processed, and they will include a change in the dismissal language contained in the right to sue letters that the EEOC issues upon the dismissal of a charge of discrimination. I will attempt to briefly outline some of the dangers and benefits of these changes

First, under the current regulations, dismissals of charges of discrimination can only be issued with the approval of the directors of each individual EEOC office. This means that the investigator tasked with each case would have to submit the case to the office director for approval before being able to issue the right to sue. If this change goes forward, the individual investigators will be allowed to issue the right to sue letters without the approval of the office director. It would be under the investigator’s discretion if a charge is dismissed or not. 

While the EEOC claims that this change will free up the office director’s time, it has the potential of having adverse effect on thousands of employees seeking relief. Mainly, it removes the safeguards of having a second individual review each and every charge to make sure that dismissal is appropriate. Moreover, office directors are normally much more experienced in employment law and have a more objective view of the case since they have not dealt with the matter as long as the investigator. As a direct result of this change, more cases will be unjustly dismissed and discarded. In the end, this will have an adverse impact that will cut against employees all around the country.

Second, the language that makes up the right to sue letter is also facing a major uplift. Currently, if the EEOC dismisses a charge of discrimination the language used states, “[b]ased upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes.” While the statement goes on to state that this does not certify that the employer was in compliance with the law, it provided a misleading impression that the EEOC performed a full investigation, even though this was not often the case. As discussed above, many times the federal agency’s resources prevent them from engaging in a full investigation. 

As many legal groups have pointed out, the fact the EEOC makes the representation that it investigated the charge of discrimination before dismissing it can have an adverse effect. For example, unrepresented employees may be discouraged from filling a lawsuit if they feel like the federal agency charged with enforcing these laws investigated the matter and found nothing. Yet, unbeknownst to them, their charge of discrimination was never subject to a full investigation.

The proposed changes to the dismissal of language of the right to sue letters will now simply state, “[t]he EEOC issues the following determination: The EEOC will not proceed further with its investigation, and makes no determination about whether further investigation would establish violations of the statute. This does not mean the claims have no merit….”

This is a much needed improvement since it will now send the clear message that a dismissal of the charge of discrimination should not bear any weight on future proceedings. 

As can be seen from the above, making sure that you exhaust administrative remedies is an essential part of being able to pursuit a discrimination claim. Unfortunately, this is not always an easy or intuitive. That is why it is important to get an opinion from an attorney that is experienced in employment law. Specifically, contacting an attorney that has experience with EEOC processes. Contact us today to set up a consultation.