In a proposed changethat would probably be helpful to employers and charging parties in“deferral” states, the EEOC would clarify the time allotted forfiling a discrimination charge in these states. (Photo:Shutterstock)

The United States Equal Employment Opportunity Commission (EEOC)issued proposed regulations that were published in theFebruary 22 edition of the Federal Register. For the most part, theproposed regulations simply make “official” what the agency hasbeen doing for years. But they contain a few interestingsubstantive provisions, too.

Substantive proposals

Time for filing in “deferral” states. In aproposed change that would probably be helpful to employers andcharging parties in “deferral” states, the EEOC would clarify thetime allotted for filing a discrimination charge in thesestates.

When a state has its own fair employment practices agency, theindividual has 300 days to file a charge instead of the usual 180days. Under the proposed regulations, the individual in a deferralstate would get only 180 days to file a charge if the state fairemployment practices statute didn't apply at all to the type of discrimination being alleged. Forexample, if the state statute didn't prohibit discrimination basedon religion, then an employee filing a religious discriminationcharge with the EEOC in that state would have to file it within 180days, not 300 days.

On the other hand, if the statute covers the general category ofdiscrimination being claimed by the individual (for example,religious discrimination) but the individualalleges a specific type of violation that is not recognized underthe state statute (for example, religious accommodation), then theindividual would still get the full 300 days to file a charge onthe theory that charging parties are usually lay persons andtherefore should not be held to overly-technical interpretations offiling requirements.

Presumably, this proposed change would mean that, if a statestatute prohibits sex discrimination but not discrimination basedon sexual orientation or gender identity, and if the individualfiles a charge alleging discrimination based on sexual orientationor gender identity, the EEOC would say the individual had 300 daysto file the charge. This is because, in the EEOC's view,discrimination based on sexual orientation or gender identity is aform of sex discrimination.

Investigators will have authority to issue “no-cause”finding and notice of right to sue. Employers willappreciate that the proposed regulations will allow investigators –rather than directors – to issue findings of no cause and noticesof right to sue. EEOC investigators are strongly encouraged toreduce their inventory of charges that are two years old or older.This proposal appears to be intended to help investigators dismissquestionable charges quickly and reduce their inventory ofunresolved charges.

Names of charging parties in age cases could be withheldfrom the employer. There is no reference to this in theEEOC's press release or in the preamble to the proposedregulations. But the proposed regulations say that charges broughtunder the Age Discrimination in Employment Act can be filed bysomeone acting on behalf of the aggrieved party, and that the nameof that individual does not have to be on the charge. Although theindividual's name does have to be provided to the EEOC (just not onthe charge itself) and can be shared with other governmentalagencies, the individual can ask to remain anonymous, and there isnothing saying that his or her name has to be, or will ever be,disclosed to the employer.

The same provision already exists in the EEOC's regulationsinterpreting Title VII of the Civil Rights Act of 1964, theAmericans with Disabilities Act (ADA), and the Genetic InformationNondiscrimination Act (GINA). It appears that the EEOC is merelyproposing to bring the ADEA into conformity with its practice underthese other statutes.

Updates and cosmetic changes

Electronic communications. First, the proposedregulations would formally acknowledge that submission ofinformation and documents and communications between the agency,charging parties and employers can be made electronically ordigitally. Many, if not most, employers have been receiving andresponding to charges through the agency's web portal andcommunicating with investigators via email for years.

“No-cause” does not mean the employer “won.”Second, the proposed regulations would clarify that even if theagency issues a “no cause” determination, that doesn't mean theemployer “won.” The EEOC proposes cosmetic changes to the wordingon its Dismissal and Notice of Rights form that the agency thinkswill make this point clearer.

This proposal is also unremarkable. All a “no-cause”determination means is that the EEOC will issue a dismissal andnotice of rights to the charging party. The charging party stillhas 90 days from receipt of the notice to file suit allegingdiscrimination based on the allegations in the charge, and manywill continue to do so.

What's next?

Even though the EEOC did not have a quorum as we went to press,the proposed regulations were approved on December 4, 2018, whenthe agency still had one—consisting of three Obama appointees andtwo vacant slots. The proposal passed unanimously, according to theEEOC's press release.

Since December 4, Chai Feldblum (D) has left the Commission andgone into private law practice, leaving three vacancies and onlytwo Commissioners: Acting Chair Victoria Lipnic (R) andCommissioner Charlotte Burrows (D). One of President Trump'snominees for Commissioner, Daniel Gade (R), withdrew fromconsideration in late December to go into academia. PresidentTrump's only remaining nominee to the Commission, Janet Dhillon (R)(who would become Chair of the Commission), has yet to be confirmedby the Senate. (The President's nomination for EEOC GeneralCounsel, Sharon Fast Gustafson, is also pending.)

Comments on the proposed regulations will be accepted untilApril 23.

Sally Ramsey ([email protected]) issenior counsel and Robin Shea ([email protected],) is a partner at themanagement-side labor and employment law firm Constangy, Brooks,Smith & Prophete, LLP. Sally practices in the firm'sNashville office, and before joining Constangy, she was a seniortrial attorney with the U.S. Equal Employment OpportunityCommission for 11 years. Robin practices in the firm'sWinston-Salem office and is the author-editor of the nationallyrecognized law blog, Employment & Labor Insider. Both Sally andRobin practice in most areas of employment law, including defenseof employers before the EEOC and in the courts.