Before an employee files a lawsuit for discrimination against an employer, they must first file a charge with the Equal Employment Opportunity Commission (EEOC). Once the charge is filed, the EEOC reviews and investigates the claims made by the employee. If the agency cannot find a violation, it issues a dismissal and a notice of the right to sue. Once the employee receives the notice of the right to sue, they have 90 days to file a lawsuit. If a lawsuit is filed after the 90-day filing period, the case will be deemed untimely and will be dismissed.
In the past, the EEOC sent communications via mail, including dismissals and notices of the right to sue. The court’s presumption was that the mail was received three days after the date of the mailing. However, the EEOC has moved away from the use of paper communications and has started primarily using technology as its preferred form of communication.
In 2017, the EEOC launched its public portal to enable individuals to submit online inquiries and requests for intake interviews with the EEOC and submit and receive documents and messages related to their EEOC charge of discrimination. Once on the portal, parties are given the opportunity to add contacts to receive communications. Many people use their attorney as a point of contact.
The United States Court of Appeals for the Third Circuit recently heard a case involving issues related to the use of technology in these claims. In Hayes v. New Jersey Dept. of Human Services, the Third Circuit ruled that neither the posting in the EEOC’s electronic portal of the dismissal of an employee’s charge and notice of her right to sue nor the EEOC’s email to the employee’s attorney initiated the 90-day filing period. It determined that the email to the attorney “was not equivalent” to the notice of the right to sue because it did not specifically state that the 90-day clock had started. While the notice was uploaded to the portal, there was no direct communication to the employee or her attorney that the upload had occurred. Therefore, the upload did not start the clock either.
The question then becomes, what can employers do to deal with this potential issue regarding the 90-day filing period, and how do employers make sure the 90-day filing period starts? Here are a few ideas:
- Upon receiving a notice of the right to sue, employers should confirm with the EEOC investigator that the employee and their counsel have received an email that the dismissal and the notice of the right to sue have been uploaded to the EEOC portal.
- Employers should regularly check their email and spam folders for important communications from the EEOC.
- Employers should ensure that the EEOC has the correct contact information listed for the employer and attorneys involved.
While the 11th circuit has not yet weighed in on this particular issue, it will be interesting to see how it decides to handle issues such as this one in the future. With the growing use of technology, we can expect to see many more issues related to its use.
Hannah E. Black is an associate in the Birmingham office. She represents clients in civil litigation with a focus on insurance coverage and bad faith, insurance defense, commercial transportation, liquor liability, and employment law.
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