Loper Bright Fuels Debate Over EEOC Rule on Worker Rights to Sue

Employers can use the US Supreme Court’s landmark decision limiting agencies’ regulatory power as ammunition to counter workers’ ability to quickly get discrimination lawsuits in court.

The high court’s 2024 ruling in Loper Bright Enterprises v. Raimondo, which eliminated the Chevron doctrine’s judicial deference for agency interpretations of vague laws, played a key role in a Thursday decision that kicked disability discrimination allegations out of court and back to the Equal Employment Opportunity Commission.

Long Island University convinced a Trump-appointed federal judge in New York that he shouldn’t yield to the EEOC’s reading of Title VII of the 1964 Civil Rights Act to allow it to issue a right-to-sue letter to former employee Cecilia Prichard about four months earlier than is standard. The judge dismissed the lawsuit without prejudice, meaning the worker can refile once she’s obtained a valid lawsuit-permission letter.

The advantages of workers stopping the EEOC from investigating a job bias charge so they can go to court a few months early—and of employers fighting that move—are less obvious than their costs. Regardless, Loper Bright allows for more litigation over that strategic jockeying, including in circuits that previously approved early right-to-sue letters.

Title VII calls for the EEOC to send the notices after it dismisses a charge or 180 days have passed since the charge was filed and the agency hasn’t sued in court or finished conciliation efforts with the employer.

An EEOC regulation, however, allows workers to seek a letter early if an agency official certifies that it’s “probable that the Commission will be unable to complete” the investigation within 180 days.

Benefits, Costs

While getting the case early means the worker is giving up the chance to essentially get free discovery from the EEOC’s investigation, it does send a signal to the employer’s counsel that they strongly believe that they have a winning case, said Michael Selmi, a discrimination law professor at Arizona State University.

“Beyond that, there’s no real advantage to it,” said Selmi, who worked for the Lawyers’ Committee for Civil Rights Under Law and the Justice Department’s Civil Rights Division.

Employers also send a message by opposing worker attempts to go to court based on early right-to-sue letters, showing that they’ll fight every inch of the way, said Joseph Seiner, a discrimination law professor at the University of South Carolina. In addition, they delay the lawsuit by a few months and add to the paperwork workers’ lawyers have to file.

But an employer that succeeds in sending the case back to the EEOC enhances the possibility that the agency will investigate a worker’s charges, which could include the use of its subpoena power, said Seiner, a former EEOC lawyer.

“It’s a strategically risky move that I wouldn’t recommend,” he said. “Why would you want to poke the bear?”

Prichard’s attorney, Brian Robinson, said he gets early right-to-sue letters in the vast majority of job bias cases he’s filed and Long Island University was the first employer to object.

The EEOC alerts people of the option to ask for permission to sue before the standard 180-day period expires as part of the boilerplate language in the agency’s response to charges being submitted, Robinson said. He said he filed the lawsuit based on that early right-to-sue letter in Prichard’s case because she wanted to get the court case going sooner rather than later.

Long Island University attorney Elizabeth Cheung-Gaffney declined to comment.

Circuit Precedent

Regardless of the costs and benefits involved, workers and employers have been litigating for decades over the validity of the EEOC’s rule allowing for early right-to-sue letters.

The Ninth, Tenth, and Eleventh circuits have upheld the regulation, with the Tenth Circuit applying the Chevron doctrine, according to Thursday’s ruling in the Prichard case.

But the US Court of Appeals for the District of Columbia Circuit ruled that the regulation violates Title VII’s mandatory 180-day waiting period, and the Third Circuit said premature lawsuits should be discouraged as contrary to congressional intent.

Loper Bright revitalizes employers’ ability to challenge early right-to-sue letters in circuits that previously endorsed the EEOC’s rule.

Although it would be extremely aggressive for a district judge to buck circuit precedent, it’s possible that circuit judges would cite Loper Bright to change course, said Craig Green, an administrative law professor at Temple University.

“I could easily imagine a circuit court coming to a different conclusion without going en banc,” said Green, a former Justice Department lawyer.

The Supreme Court said that Loper Bright didn’t open the floodgates on overturning precedent that’s premised on an application of the Chevron doctrine. But a circuit court wouldn’t decline to reconsider its Chevron-based precedent endorsing the EEOC’s rule on early right-to-sue letters, said Jennifer Selin, an administrative law professor at Arizona State University.

“A court looking at that sort of issue isn’t going to parse out whether it was based on Chevron or another reason,” she said.