EEO LAW BASICS
CHAPTER 12
EEOC PROCEDURES

1) Except for the Equal Pay Act (29 U.S.C. §206(d)), the substantive statutes administered by the EEOC require that a person claiming discrimination file a charge of discrimination with the EEOC. See 42 U.S.C. §2000e–5(b) (Title VII); 29 U.S.C. §626(d) (ADEA); 42 U.S.C. §12117(a) (ADA).

2) Charges must be in writing and under oath. See id.; see also 29 C.F.R. §1601.9.

3) If an unsworn charge is filed, a charging party may verify the charge while it is still pending before the Commission and the verification will relate back to the original filing date. See Edelman v. Lynchburg College, 535 U.S. 106 (2002); 29 C.F.R. §1601.12(b).

4) The charge, at a minimum, must be “a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.” 29 C.F.R. §1601.12(b).

5) A charge may be filed in person or by mail at any EEOC field office, Commission headquarters in Washington, D.C., or with any designated representative of the Commission. See 29 C.F.R. §1601.8.

6) The charge filing process also may be started by calling the Commission’s National Contact Center at 1-800-669-4000, but an actual charge must be filed with a district office to constitute a charge. American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

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

1) The charge filing requirement is not jurisdictional and is subject to waiver and estoppel. See Zipes v. TWA, Inc., 455 U.S. 385, 395 (1982).

2) Commissioner’s charges are subject to greater requirements of specificity than individual charges. See EEOC v. Shell Oil Co., 466 U.S. 54, 73 (1989).

3) The ADEA and EPA do not provide for Commissioner’s charges, and the EEOC uses directed investigations, sometimes followed by suit by the EEOC, to serve the same role of initiating investigations and enforcement in the absence of a charge by a person aggrieved.

4) When one charge of discrimination has been filed by a named plaintiff, in some circumstances other named plaintiffs or interveners may sue as to the same practice without having to file their own EEOC charges. Because of the importance of notice to the EEOC and the defendant, the success of such “piggy backing” efforts may depend on whether the charge on which the others seek to “piggy back” put the EEOC and the defendant on notice of large-scale or class-type liability, or instead that the number of the persons seeking “piggy backing” is small. See e.g., Howlett v. Holiday Inns, Inc., 49 F.3d 189, 194 (6th Cir. 1995) (ADEA; only one piggy backer); Tolliver v. Xerox Corp., 918 F.2d 1052, 1057-58 (2nd Cir. 1990) (Title VII), cert. denied, 499 U.S. 983 (1991)); Anderson v. Montgomery Ward & Co., Inc., 852 F.2d 1008 (7th Cir. 1988) (ADEA); Levy v. U.S. General Accounting Office, 175 F.3d 254, 255 (2nd Cir.) (per curiam), cert. denied, 528 U.S. 876 (1999) (rule did not apply where the additional plaintiffs had filed their own charges and let their notices of right to sue expire); Whalen v. W.R. Grace & Co., 56 F.3d 504, 507 (3rd Cir. 1995) (recognizing conflicting authority but holding that “single filing” rule does not allow amendment of an individual ADEA complaint, not alleging a class or representative action, to add new plaintiffs who have not filed charges with the EEOC, and holding that new individuals may not “opt in” to the individual action); Forehand v. Florida State Hospital at Chattahoochee, 89 F.3d 1562, 1565 n. 8 (11th Cir. 1996) (dictum).

5) Although EEOC charges are intended to put the Commission and the respondent on notice of the alleged acts of discrimination, EEOC charges are not construed with “literary exactitude,” and the classic test is that “it is only logical to limit the permissible scope of the civil action to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Sanchez v. Standard Brands, 431 F.2d 455, 465-66 (5th Cir. 1970).

6) The courts have generally held that plaintiffs may include post-charge retaliation claims in their judicial complaints without having filed a retaliation charge with the EEOC. See, e.g., Clockedile v. New Hampshire Department of Corrections, 245 F.3d 1, 4-5 (1st Cir. 2001); Anderson v. Reno, 190 F.3d 930, 938 (9th Cir. 1999).

7) Even though the statutes provide that a civil action may be brought against a respondent named in the charge, courts have taken different views on what it means to be “named” in the charge, and tend to focus on the reasonable scope of the EEOC investigation, actual notice to the unnamed party, and identity of interest between the named and unnamed parties.

8) A plaintiff is required to have exhausted claims, not the evidence on which the plaintiff relies to establish the claim. See, e.g., Rutherford v. Harris County, 197 F.3d 173, 186 (5th Cir. 1999); Kline v. City of Kansas City Fire Department, 175 F.3d 660, 668 (8th Cir. 1999), cert. denied, 528 U.S. 1155 (2000). American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

1) In non-deferral jurisdictions, a charging party must file their charge within 180 days of the allegedly discriminatory act or practice. See 42 U.S.C. §2000e-5(e)(1); 42 U.S.C. §12117(a); 29 U.S.C. §626(d)(1).

2) In deferral jurisdictions, a charging party has up to 300 days to file a charge with the commission. See 42 U.S.C. §2000e-5(e)(1); 42 U.S.C. §12117(a); 29 U.S.C. §626(d)(2) and §633(b).

3) A deferral jurisdiction is a state with “a comprehensive law and an investigatory agency with enforcement powers that has applied for deferral status.” Fair Employment Practices Manual, §451.2 (BNA). A list of approved deferral agencies can be found at 29 C.F.R. §1601.74.

4) Neither the deadline for filing a charge, nor the 90 day deadline for filing suit after receipt of the notice of right to sue are jurisdictional. They are subject to waiver, estoppel, and equitable tolling. See Irwin v. Dept. of Veterans Affairs, 498 U.S. 89 (1990); Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984); Zipes v. TWA, 455 U.S. 385 (1982).

5) The time to file a charge, or to file a lawsuit where there is no administrative exhaustion requirement (ex., 42 U.S.C. §1981), starts to run when the individual is notified of the final adverse employment action, not when the action is put into effect, even if there is a process for reconsideration still available to the plaintiff. See Delaware State College v. Ricks, 449 U.S. 250, 257-58 (1980).

6) In pay discrimination cases, each discriminatory paycheck is an actionable incident of discrimination from which the filing deadline is calculated. See Bazemore v. Friday, 478 U.S. 386, 395-96 (1986).

7) Discrete retaliatory or discriminatory acts such as hiring, firing, demotion, and the like, occur for purposes of computing filing deadlines on the day the event happens. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-15 (2002).

8) Unlike discrete events, Morgan held that a claim of hostile work environment is one practice even though it is ordinarily composed of a number of separate actions, some of which may fall outside the period of limitations. “Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by the court for purposes of determining liability.” Morgan, 536 U.S. at 117.

9) Morgan expressly provides employers a laches defense in hostile environment claims, and indicates that other equitable defenses may be available as well. Morgan, 536 U.S. at 121-22.

10) The laches defense “’requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.’” Morgan, 536 U.S. at 121-22 (citations omitted).

11) Morgan does not address when an act or practice occurs in the context of a pattern or practice case. Morgan, 536 U.S. at 1115 n. 9.

12) The time to file suit under 42 U.S.C. §1981 is not tolled during the pendency of an EEOC charge. See Johnson v. Railway Express, 421 U.S. 454 (1975).

13) The time to file suit or a charge is not tolled pending the exhaustion of an internal review procedure as to a decision that is otherwise final. See Delaware State College v. Ricks, 449 U.S. 250 (1980).

14) The time to file suit or a charge is not tolled during a collectively bargained grievance procedure. See International Union of Electrical, Radio and Machine Workers, AFL_CIO, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229 (1976). American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

1) The Commission has implemented a mediation program, and its Alternative Dispute Resolution Policy Statement is available at www.eeoc.gov.

2) Each District Office has a designated staff member who is responsible for coordinating mediation activities within that Office’s geographical jurisdiction. The EEOC’s mediation contact list is also available on the Commission’s website.

3) The EEOC screens all charges to determine if they are appropriate for mediation.

4) Both parties must consent to participate.

5) If the EEOC does not initially offer mediation, the parties may request that the charge be referred to mediation.

6) The mediation process is confidential, and no information divulged during the mediation is disclosed to EEOC investigators.

7) If a charge is resolved at mediation, the Commission will take no further action on the charge.

8) If a charge does not settle, the file will be referred to the EEOC’s investigative unit and will be processed through the normal investigative procedure. American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006