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.

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Photo of Jairo N. Castellanos Jairo N. Castellanos

We asked Jairo N. Castellanos, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions. After reading, you will be more more informed on the well-respected reputation that Mr. Castellanos

We asked Jairo N. Castellanos, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions. After reading, you will be more more informed on the well-respected reputation that Mr. Castellanos carries.

1. Why did you start practicing labor and employment law?

I think labor and employment law is a fascinating part of the law that impacts everyone. Most people spend nearly as much time at work as they do with their family.

2. Who is your favorite Supreme Court Justice?

My favorite sitting justice is Justice Sonia Sotomayor.

3. What skills do you value as an employment attorney?

I think an important skill to have as an employment attorney is the ability to tell people’s stories. It is important to be able to effectively convey entirety of the case beyond the legal aspects of it.

4. What do you do when you’re not practicing law?

I like to read fiction and spend time with my daughter.

5. What’s your favorite legal movie

That is a toss-up between A Civil Action and My Cousin Vinny.

6. What’s your favorite legal TV show

Always Sunny in Philadelphia when they are discussing bird law.

7. Have you ever learned something from one of your clients?

I’ve learned that there is no one size fits all solution to dealing with issues. Much like there is no one size fits all way of approaching a problem.

8. If you could argue any case in history, what would it be?

Brown v. Board of Education of Topeka.

9. What do you most want your clients to know about you?

That in me they can find someone that will fight his hardest for them regardless of the outcome.

10. Who’s your favorite judge?

Former Chief Justice John Marshall

Jairo N. Castellanos is a Trial Attorney in the Austin office of Wiley Walsh, P.C.  He graduated from The University of Nevada in Las Vegas with a bachelor’s degree in 2009.  Mr. Castellanos then graduated from The University of Texas School of Law in 2015. Mr. Castellanos is fluent in English and Spanish.