During the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC)  is delaying the issuance of “Notice of Right to Sue” letters to workers. While not publicly announced by the agency, officials have confirmed this practice to advocacy groups and media outlets.

The Notice of Right to Sue letter begins the clock ticking as to when plaintiffs must bring a lawsuit against a company for discrimination under federal law. Specifically, once workers receive this EEOC notice, they have 90 days to file a complaint in federal or state court. The 90 days deadline to file in court is a statutory deadline that must be met and cannot be changed by the EEOC.  On the other hand, when the notice that triggers this statutory clock is sent to workers is within the control of the EEOC.  It appears that the EEOC is taking this opening.

The EEOC oversees federal anti-discrimination laws.   Workers must first bring a charge of discrimination with the EEOC or dual file with a state agency within the applicable 300 days or 180 days deadline based on the circumstances. This triggers an investigation by the agency into the discrimination complaint.  A Notice of Right to Sue letter is generally issued by the EEOC at the time it closes its investigation of a charge.  However, if a worker wants to file a lawsuit alleging violations of federal discrimination law in court before an investigation is complete, the worker may specifically request that such a notice be issued. The notice is needed before a worker can file a lawsuit in federal or state court.

What does this delay in the issuance of notice letters mean for employers?  Without the notice letters going out to workers, the 90 days countdown does not begin.  Thus, employers may see some short reprieve from lawsuits at this time.

Does this mean a full stay for employers of all discrimination claims? Not exactly. While the pause button has been pressed temporarily at the lawsuit end by the EEOC, the agency has not delayed the filing deadlines for workers to bring a charge at the EEOC or a state agency initially. Thus, companies may receive new charges of discrimination filed by workers. Additionally, while the EEOC is holding off on finalizing investigations and issuing Notice of Right to Sue letters, the EEOC is providing such notice letters to those workers who specifically request one. Thus, if a plaintiff specifically requests the right to sue letter from the EEOC, companies may find themselves defending against claims in federal or state court.

At this same time, the EEOC has assured the public that it is continuing to serve the public during this pandemic. It has also confirmed that while its physical facilities are closed due to COVID-19, the EEOC is working remotely to address employees’ complaints of discrimination or harassment.

Additionally, the EEOC has reminded employers of their obligation to prevent and correct discriminatory behavior in the workplace. With the COVID-19 pandemic, there have been reports about mistreatment and harassment of people of Asian descent. In employment, this type of behavior could result in unlawful discrimination on the basis of national original or race. The unfavorable treatment that leads to such claims can be directed to employees within these protected categories or involve treating employees unfavorably because they are associated with a person in these protected categories. It does not matter if the employee experiencing the behavior and the person engaging in such conduct are of the same national origin or race. EEOC Chair Janet Dhillon’s statement about unlawful national origin and race discrimination can be found here.

The EEOC has also issued guidance on how employers can handle concerns related to the COVID-19 pandemic and take steps to maintain a safe work environment while adhering to the Americans with Disabilities Act (ADA).  A fact sheet on how to deal with a pandemic in the workplace is also available from the EEOC.

It is important to remember that while we all work to slow the spread of this virus through remote working or implementing safety procedures and measures in the workplace, employment laws remain an obligation of employers. Companies are encouraged to remind employees that during this pandemic the company’s anti-discrimination policies are expected to be followed and will be enforced. Whether employees are working remotely or in the workplace, federal and state anti-discrimination laws continue to protect employees from discriminatory and harassing behavior based on protected classifications. This includes any such unlawful behavior from supervisors, co-workers, customers, or vendors.