Lou Michels and Rod Satterwhite are partners in the Labor & Employment group at McGuireWoods LLP. Both handle employment litigation on behalf of employers, and advise companies on employment issues regularly.
posted on Tuesday, August 07, 2007 10:54 AM by Lou Michels

A Clarification on Right to Sue

One of the things that has always bothered me about the EEOC process in employment discrimination cases is its lack of precision on certain critical issues. This is particularly true with regard to one of the most significant time requirements contained in Title VII - the requirement that the plaintiff file a lawsuit in federal court within 90 days of receipt of a right to sue letter from the Commission.

For whatever reason, the Commission has never taken steps to ensure that there is a record of when it mailed a right to sue letter and when the plaintiff ultimately receives the letter. I've always believed that this is due, in part, to the Commission's hope that by introducing some uncertainty into the process, courts would be willing to err on the side of caution and allow cases to go forward when it appeared that the 90 day filing window had expired. Using a next-day carrier, or certified mail, both relatively simple and expedient, would be preferable to the current system, in which the right to sue letter is simply dropped into the US mail, without even a certificate showing when the document left the government's hands. And I'm aware of numerous cases where right to sue letters have languished in EEOC regional offices for days before being mailed, as well as the typical delays that manifest themselves in the US postal system.

Naturally, this haphazard process introduces all kinds of problems when a plaintiff files her case at 93-plus days following the date on the EEOC's letter. The Ninth Circuit, of all places, recently tried to establish "a coherent rule" in these types of cases, and determined that, absent some other evidence, a plaintiff will be presumed to have received a right to sue letter three days after the date of the right to sue letter. The decision is even more surprising because it had the effect of terminating a plaintiff's employment discrimination case because the plaintiff filed 97 days after the date of the EEOC's letter.

There's still no universal rule on presumption of receipt, but perhaps the EEOC will begin to address the issue now that the Ninth Circuit has spoken.

Comments

# re: A Clarification on Right to Sue

Wednesday, August 08, 2007 8:32 AM by Charlie Edwards, Womble Carlyle Sandridge & Rice
In fact, once upon a time EEOC did sent right-to-sue notices return receipt requested, and you could obtain a copy of the "green card" along with the redacted investigative file. But since this is no longer the case, counsel are indeed left guessing - including plaintiffs' counsel who can only ask the client "when did you get this?" with the answer being tailored to "why does that make a difference?" In my view, an astonishing percentage of plaintiffs' attorneys wait to file on what they believe to be the 89th or 90th day, for reasons which defy explanation. Everyone involved would be saved a headache if there were more alacrity in getting to court - after all, you can always amend. North Carolina's Retaliatory Employment Discrimination Act gives the charging party 90 days from the date of the notice rather than from its receipt. A Congressional "fix" is in order, although that still would leave open the problem of delays in processing and mailing the NRTS.

# re: A Clarification on Right to Sue

Friday, February 15, 2008 5:35 PM by Michelle
Hi - I have a couple of questions and have been searching the Web for hours now and surprisingly cannot find the answer to my questions.
1) Must an individual receive a right to sue from the EEOC before suing in court? In other words, can the individuals take the case to court without even bringing it to the EEOC?
2) If the EEOC brings lawsuits on behalf of individuals who have been discriminated against, what is the purpose and point of having employment attorneys?
Any info you can give me would be greatly appreciated. It has been an ordeal trying to find the answer to these simple questions!

# re: A Clarification on Right to Sue

Wednesday, February 20, 2008 6:05 PM by Lou Michels
Michelle,
With virtually all federal discrimination claims, a plaintiff cannot go to federal court without a right to sue letter. Someone claiming age discrimination has the right under the statute to go into court 61 days after filing a charge with the Commission without waiting for a right to sue letter, but this is extremely rare. Equal Pay Act cases do not require a right to sue letter, either.
Although the Commission has the statutory right to sue on behalf of individuals, in fact it rarely does. The Commission typically reserves its very limited litigation resources for cases that might make new law, class actions involving multiple plaintiffs, or in individual cases where the facts are particularly egregious. The Commission does not have the staff to support litigation on even a small percentage of the cases that are filed in federal and state court every year.