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EEOC Gives Workers Reprieve From Lawsuit Deadlines Due to Virus

April 7, 2020, 10:03 PM

A federal worker civil rights agency has temporarily paused closing investigations of workplace discrimination claims in response to the coronavirus crisis, effectively giving workers more time to file lawsuits against employers.

The Equal Employment Opportunity Commission more than two weeks ago stopped closing investigations of charges filed by workers, an agency spokesperson confirmed to Bloomberg Law. Once an investigation is closed, the EEOC typically issues a “right-to-sue” letter to a worker, who must file a lawsuit against an employer within 90 days of receiving that notice. By temporarily suspending “the issuance of charge closure documents unless a charging party requests them,” the agency is giving workers a reprieve from navigating how to file a lawsuit during a global pandemic.

“The EEOC appreciates that some people whose charges are currently before the EEOC may be worried that they might have to choose between jeopardizing their safety and protecting their rights,” an agency spokesperson said in an email. The policy has been in place since March 21. The agency also updated its guidance on how discrimination charges filed by government workers should be handled, allowing for additional flexibility if both a federal agency and its worker agree to it.

The EEOC’s new approach was confirmed in a time when there have been reported incidents of discrimination and harassment related to Covid-19, the disease caused by the coronavirus, particularly against Asian-Americans and other people of Asian descent. The commission has called on employers to “create respectful workplaces,” and announced it will track any workplace bias charges filed that are specifically related to Covid-19. The pandemic also has presented a number of novel labor and employment law challenges, as employers grapple with how they can best operate.

More than 80 worker advocates asked the EEOC for a moratorium on issuing right-to-sue letters, among other requests. The groups that signed on to a letter sent to the agency Tuesday include the National Women’s Law Center, the Center for American Progress, the Human Rights Campaign, the NAACP, and others.

“In this time of quarantine, social distancing, and widespread closures, individuals who have experienced unlawful workplace discrimination will face often insurmountable difficulties in seeking to take timely steps to protect and enforce their rights,” the letter says. “If they or family members fall ill, these obstacles will be further heightened.”

In the letter, the groups acknowledged that the agency had stopped issuing right-to-sue notices unless a charging party requested one.

“We first learned of this policy on March 23, 2020 through an email from Nick Inzeo, director of field operations to attorneys from the ACLU. We cannot find any indication that the agency has made any public announcement of this decision, and, in fact, it seems at odds with the statements in” the agency’s publicly available updates, they wrote.

The EEOC didn’t comment on the other specific demands outlined in the letter.

Request for Reprieve

The groups also made additional requests to extend or temporarily put on hold other deadlines for workers.

Deadlines for right-to-sue notices that already have been issued and require a worker to file a lawsuit by any date after Feb. 29 also should be paused, the groups said, adding that some state court and many law office closures complicate the situation.

Workers in the private sector are required to file bias charges with the EEOC within 180 days of a discriminatory incident, or within 300 days of alleged discrimination occurring if there’s a similar state law. This deadline should be pushed off, the groups said, acknowledging that “this is a statutory deadline that the EEOC may not be able to change on its own.”

Flexibility for Feds

Meanwhile, federal government workers generally have 45 days from when the alleged discriminatory incident occurred to contact their agency’s EEO office—a deadline created by a regulation that should be changed, they said.

“In the current situation, given the challenges set out above, where some brave workers have been declared essential and must go to work despite the danger of infection, other workers are balancing teleworking and caregiving responsibilities, and still other workers are ill with the virus, the deadline poses extreme difficulties and the EEOC should extend it to at least 180 days to align with those imposed on non-federal employees,” they wrote.

The agency said it “provided guidance and instructions for both complainants and agency officials to provide similar needed flexibilities” to federal sector discrimination charges, referencing a memo dated April 6 that potentially allowed for the extension of some deadlines, but didn’t extend them outright.

“Agencies and complainants are encouraged to seek mutual agreement with respect to the extension of any timeframes,” the agency said in the memo. “Where such agreements are reached, they should be reduced to writing and made part of the record.”

It said it would honor those agreements on appeal, unless they’re “clearly onerous to one party” or otherwise violate other legal standards.

The EEOC also asked agencies handling complaints to similarly hold off on issuing any final actions, unless the worker filing the complaint requested it.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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