The U.S. Equal Employment Opportunity Commission (EEOC) received 76,418 individual charges of discrimination in its 2018 fiscal year alone. While this figure is a slight decrease from the previous year, the number is still significant and should prompt employers and risk managers to better protect their businesses by preparing to successfully resolve or avoid a discrimination charge filed by an employee.
One key part of doing so is monitoring EEOC activity. In February, the EEOC issued a notice of proposed rulemaking, including proposed changes that could impact regulations under Title VII, the American Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), and the Age Discrimination Employment Act (ADEA). While the proposed changes appear to be minor, the impacts could be significant.
Fully Digitizing Discrimination Charges
One of the more noteworthy proposed changes is to fully digitize the charge process and records system. The EEOC has been building a fully digital system for discrimination charges to allow the commission, charging parties and respondents to communicate and transmit documents. Currently, respondents can access a digital portal for a limited range of activities, including verifying the organization’s contact information, viewing the discrimination charge, receiving notice of the charge and digitally submitting a position statement. However, the EEOC now has the capacity to make the charge process and records system fully digital for all participants at every stage of the process.
To reflect this capability, the EEOC proposed altering current regulations to explicitly provide for the transmission of charge-related documents online. Given the digital nature of almost all aspects of business, this proposal is a logical next step to bring the EEOC up to date.
Additionally, this change could allow for easier filing and potentially faster charge resolution, which would benefit employers. But digitizing the charge process could also make it easier for employees to file, amend and/or submit documents, which could lead to an overall increase in charge activity and subsequent litigation.
Deferrals to State and Local Agencies
The EEOC also seeks to clarify filing deadlines for charging parties. A charging party has either 180 or 300 days to file a charge of discrimination after an unlawful employment practice occurs, depending upon the state in which the charge is filed. In jurisdictions that have a state or local fair employment practice (FEP) agency, Title VII generally provides the charging party 300 days to file a charge. However, a charging party has only 180 days in jurisdictions with no FEP agency.
A less common scenario arises for charging parties in FEP jurisdictions where the FEP agency lacks authority to investigate a particular type of charge. If the FEP is considered to be “without subject matter jurisdiction over a charge,” this limits a charging party to 180 days, instead of the typical 300 days. For instance, an employee files a charge alleging disability discrimination, claiming that the employer failed to accommodate the disability. The state where the respondent filed the charge has a FEP agency and state law prohibits disability discrimination but does not recognize failure to accommodate as a cause of action. In this case, the employer would assert that the employee had to file the charge in 180 days because state law would not permit recovery for a failure to accommodate claim.
The EEOC asserts that interpretations limiting a charge to 180 days based on charge allegations are incorrect, arguing that these types of technicalities are unfair to the average charging party, who has no legal background to understand “complicated issues of state law.” Thus, the EEOC proposes to change the regulation language to “jurisdiction over the statutory basis alleged in the charge.”
If issued, this proposed change to the jurisdictional language would hinder employers from successfully asserting these types of technical deadline arguments. Charging parties could instead obtain the 300-day filing deadline by simply checking the box on a charge for a type of discrimination recognized by their state law, even if the allegations are meritless.
Clarifying “No Cause” Determination Procedures
The proposal also seeks to clarify the EEOC’s issuance of a “no cause” determination to specifically state that this does not mean the claims in the charge have no merit. This appears to be a matter of semantics, however, as a “no cause” determination has never meant that the EEOC ruled in an employer’s favor or that the underlying claim had no merit.
Upon first glance, potentially more concerning for employers is the portion of the proposed rule addressing the EEOC’s authority to reconsider, on its own initiative, a “no cause” determination. However, a careful review reveals that this proposal merely updates an already existing regulation (29 C.F.R. § 1601.19) to provide that the reconsideration can be initiated from the “director of the issuing office” as opposed to the “issuing director.”
In practice, this should not have much effect on the reconsideration process, which has always been available to the EEOC. However, this revision is a good reminder for employers that the EEOC does retain the right to reconsider a “no cause” determination and can, in fact, exercise this right.
Disclosing the Charging Party in Age Cases
A final proposal includes allowing an age discrimination claim under the ADEA to be filed by a person, agency or organization acting on behalf of an aggrieved party, and not requiring that the party’s name be disclosed on the charge. While this may seem alarming to employers, the same language already exists in regulations for Title VII, the ADA and GINA. Thus, the rule is likely just intended to ensure uniformity between identification of charges under each statute, particularly in light of charges alleging multiple types of discrimination.
Next Steps
The proposed rule was open for public comments through April 23, 2019. Once the EEOC has considered comments, it will issue a final rule. If the changes are enacted, employers should be prepared for a potential increase in discrimination charge filings. There is no way to eliminate the risk of an employee filing a charge, but there are simple things employers can do to mitigate it.
First, they should make sure all employees are aware of and complying with the employer’s current discrimination, harassment and accommodation policies. Employers can also educate themselves on the intricacies of discrimination laws to ensure compliance when disciplining, terminating or performing other adverse employment decisions. Lastly, employers can provide training for employees or perform internal audits. If employers implement these types of practices, they will be better prepared for the final rule if it is issued.