Pay Attention to the EEOC’s Emails about Uploads to the Portal!

In last month’s E-Update, we discussed a case in which the EEOC’s upload of the dismissal and notice of right to sue, without more, was not sufficient notice to the charging party or her attorney, which meant that the 90-day period for filing suit did not begin to run until later. We suggested that wise employers may wish to confirm that the EEOC has emailed notice of the upload to the employee and employee’s attorney – and now a case from the U.S. Court of Appeals for the Eighth Circuit reinforces that point.

In McDonald v. St. Louis University, in response to the employee’s request for a right-to-sue letter, the EEOC sent an email to the employee’s attorney stating that “a new document was added to” the portal, along with a link to the portal. The new document was the requested right-to-sue letter and dismissal of the charge. Although the lawyer read the email, as well as the reminder email a week later, he did not access the portal because he lost the password. Almost six weeks later, he emailed the EEOC to request the letter, which was subsequently emailed to him. The employee then filed suit 137 days after the first email (which was 87 days after the final emailed letter). The federal district court threw out the case for being untimely filed outside the 90-day filing period, and the employee appealed, arguing both that her filing was timely and that even if it was not, the 90-day period should be equitably tolled (i.e. in effect, excused).

The Eighth Circuit ruled that the employee, through her attorney, received sufficient notice of her right to sue through the first email, which told them to check the EEOC portal. It also found no reason for equitable tolling, noting that the attorney made little effort to access the portal, or even inform the EEOC that he could not do so (and by the way, it is possible to reset the password – there is a “Forgot Password?” button on the log-in page). Moreover, when the EEOC finally emailed the actual notice of right to sue, there was still 41 days left in the 90-day filing period.

So this case emphasizes the need for employers and employees (and their attorneys) alike to pay close attention to EEOC emails about new information/documentation in the portal. And to learn how to use the “Forget Password?” button.