Third Circuit Title VII Ruling Extends the EEOC’s 90-Day Filing Period

Employers should take note of the recent Title VII ruling by the Court of Appeals for the Third Circuit. According to Fiona W. Ong from the Shawe Rosenthal firm, the court found neither of the two potential triggering events was enough to start the 90-day filing period.

Employees must file a discrimination charge with the Equal Employment Opportunity Commission (EEOC) before filing a lawsuit. The agency investigates. If it cannot identify a violation, it issues a dismissal and a notice of right to sue. The employee has 90 days to file a lawsuit from receipt of the notice. Suits filed late are dismissed.

In Hayes v. New Jersey Dept. of Human Services, the Third Circuit ruled that neither posting in the Equal Employment Opportunity Commission’s electronic portal of dismissal of an employee’s charge and notice of her right to sue nor the EEOC’s email to her attorney, initiated the 90-day filing period.

In the past, the EEOC snail-mailed the initial notice of the charge, a dismissal of charges, and notice of the right to sue. Receipt of that letter was presumed three days after the date of mailing, subject to rebuttal with evidence.

Now, the Commission uses an electronic portal to transmit and receive information and documents from all parties. Oddly enough, that system has displayed glitches. 

The EEOC’s emails to employers to notify them of charges and provide a link to the portal have landed in spam filters. Sometimes, they are directed to the wrong company official, who finds the email incomprehensible or possibly a security risk and ignores it. Sometimes, the EEOC neglects to upload key information to the portal. Months may pass before it sends a physical letter with the charge. The Third Circuit took such issues into account in its Title VII ruling.

Ong suggests that employers check their spam filters regularly for important correspondence. Large employers dealing with Title VII charges often should ensure the EEOC knows who to contact. They might also double-check that the EEOC has emailed the employee and that the dismissal and notice of the right to sue have been uploaded to the portal.