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Virginia District Court Rules that EEOC Cannot Issue Early Right-to-Sue Notice

On February 24, 2015, the District Court for the Western District of Virginia dismissed a pregnancy discrimination lawsuit because the Equal Employment Opportunity Commission (“EEOC”) prematurely issued a “right-to-sue” notice, giving the plaintiff permission to file a lawsuit in court before she was allowed to do so under the law.

In Taylor v. Cardiology Clinic, Inc., the plaintiff filed charges of discrimination with the EEOC against two entities that she claimed were her joint employers. Her charge alleged that her employers reduced her hours, made negative comments about her pregnancy, and ultimately, terminated her employment in violation of Title VII of the Civil Rights Act. Under the law, the EEOC must conduct an investigation of any charge of discrimination filed with the agency and attempt conciliation between the parties; if it fails to do so within 180 days of when the charge is filed, the agency may issue a right-to-sue notice permitting the charging party to bring a lawsuit in federal court. However, the EEOC enacted a regulation authorizing itself to issue right-to-sue notices “at any time prior to the expiration or the 180 days from the date of filing of the charge…”

In this case, the EEOC issued a right-to-sue notice 120 days after one of the charges was filed, and 9 days after the other charge was filed, explaining that it was “unlikely” that the agency would conclude its investigation with the 180-day timeframe. When the plaintiff filed her lawsuit in court, her employers moved to dismiss the complaint, claiming that the court did not have jurisdiction because the EEOC’s right-to-sue notices were issued prematurely.

The court agreed with the employers and found that “the EEOC has control over charges of discrimination for 180 days, and not a day less.” Therefore, it held, the EEOC did not have authority to enact the regulation that permitted it to issue right-to-sue notices before the 180-day period expired. The court returned the complaint to the EEOC for the remainder of the 180-day period and held that plaintiff could refile her lawsuit only after the required amount of time had passed. The decision adds to a division among courts that have considered the issue — some of which have declined to dismiss a complaint following EEOC’s issuance of an early right-to-sue notice.

This case should serve as a reminder to employers who receive court complaints to review all the potential procedural defenses that could be made in response to such a complaint.

© 2023 Proskauer Rose LLP. National Law Review, Volume V, Number 69
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About this Author

Evandro Gigante Labor and Employment Lawyer Proskauer Rose Law FIrm
Partner

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents clients through a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. Evandro also counsels employers through reductions-in-force, employee relations issues and other sensitive employment matters.

With a focus on discrimination and harassment claims,...

212.969.3132
Jacquelyn R Weisman, Proskauer, New York, Labor Lawyer
Associate

Jackie Weisman is an associate in the Labor & Employment Law Department, member of the Employment Law Counseling & Training and Employment Litigation & Arbitration Groups. She handles a wide range of employment litigation matters, including wage-and-hour issues, wrongful discharge, and unlawful discrimination as well as conducting internal investigations of complaints of harassment, discrimination, retaliation, and other unfair treatment. She represents clients in a variety of industries, including sports, food and beverage, media, education and legal. Jackie...

212.969.3346
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