EEOC Reduces the Time to Respond to EEOC Charges, But to What End? (And What You Can Do to Support Your Counsel’s Ability to Respond Quickly)
By now you have likely heard that the EEOC has significantly reduced the time to respond to a notice of a pending EEOC charge. Historically, when a respondent received a notice of an EEOC charge (which are delivered via e-correspondence — so be on the lookout for e-mail from the EEOC), it typically had at least 30 days to provide a response. That 30-day period could oftentimes be extended by two to four weeks by filing an online request for the extension, which the EEOC would usually grant so long as the respondent could illustrate that it was working diligently to respond, not anymore.
While the EEOC has not made this an official policy for agency-wide treatment, many labor and employment attorneys are reporting that the EEOC portal is advising that a response is now due within 15 days: one-half of the previous typical timeframe, and of the period outlined on the EEOC website for responses (see EEOC FAQs for Responding to a Charge). Further, reports abound that the EEOC is not allowing extensions. This approach begs the question: why? Isn’t the goal[1] of the investigation process to get to the bottom of whether a charge has merit? Does reducing the response time to a charge facilitate this goal? Highly unlikely.
However, the reduction does allow the EEOC to “improve” its statistical performance: by reducing its significant backlog and quickly ending its obligations associated with new charges. By closing charges earlier, the EEOC can now “move” to the conciliation portion of its statutory obligation more quickly — that is, it can attempt to settle charges with Respondents for allegedly “meritorious” claims. By moving up the conciliation process, the EEOC enhances its ability to strong-arm Respondents into settlements, and to improve its “recovery” statistics as well, as earlier touted on its web site.
But to what “real” end? If we assume the EEOC can now pursue lawsuits for which a “merit” finding has been made, does the agency truly have the wherewithal to do so? By the end of FY25, the EEOC had filed approximately half as many lawsuits as had been filed two years prior. So, likely not. Further, is the EEOC going to force complainants to reply more quickly to responses from those they have filed charges against — also likely not. Even so, does this mean you can ignore notice of an EEOC charge — again, likely not!
Rather, you should assist your in-house or external counsel in preparing the response on an expedited basis, even if the matter may “close” out more quickly. Because closing out a matter does not mean it is over — rather, it means that a complainant will receive a Notice of Right to Sue (NRTS) more quickly and can commence their own lawsuit. When the EEOC closes its investigation, it has a statutory obligation to issue an NRTS to the complainant. This allows the complainant to initiate a lawsuit, as such lawsuits are only permitted after a complainant has “exhausted” their administrative obligation to allow the EEOC to first “investigate” the complaint.
How can you help your counsel quickly respond?
First, upon receipt of the e-notice of the charge, gather documentation that relates to the decision challenged in the charge (termination, failure to promote, etc.).
Second, immediately reach out to your attorney or in-house counsel and advise of the charge; this will allow outside counsel to clear conflicts (ensure they have never represented the complainant before — which is typically the case, but which must be done in order to comply with attorney ethical rules.)
Third, get the documentation over to your attorney as soon as conflicts clear, and have the individuals involved in the adverse action available to speak with counsel as to the rationale for the action.
Finally, be sure to be available to review your attorney’s response to the charge. The luxury of a week-long period to review may no longer exist: you may need to be prepared to receive and review the response within 24-48 hours to facilitate a timely filing on your behalf.
Will failing to timely respond become the “be all to end all?” No. The EEOC does not have any statutory authority to “enforce” an expedited response timeline; and, as noted above, it is highly, that the agency will (or has the resources to) initiate lawsuits against those that fail to respond. However, it may create an opportunity for artificial external pressure to settle non-meritorious claims. Pressure that can be avoided by rolling up your sleeves early and helping your attorney get a response online quickly.
[1] Per the EEOC web site, “[t]he EEOC has the authority to investigate charges of discrimination against employers who are covered by the law. Our role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding.” (Italics added.)
