The 90-Day Filing Period for Discrimination Lawsuits Might Be Longer Than, Well, 90 Days…

In a cautionary tale for employers, the U.S. Court of Appeals for the Third Circuit recently held that neither the posting of the dismissal of an employee’s charge and notice of her right to sue in the Equal Employment Opportunity Commission’s electronic portal, nor the EEOC’s email to her attorney, was sufficient to trigger the start of the 90-day filing period for a Title VII lawsuit.

The Charge Filing Prerequisite for a Discrimination Lawsuit. Before filing a discrimination lawsuit in federal court, an employee is required first to file a charge of discrimination with the EEOC. Unless the parties opt for EEOC mediation, the agency will typically conduct an investigation into the charge. If the EEOC cannot identify a violation of the antidiscrimination laws, it issues a dismissal of the charge and a Notice of Right to Sue (NRTS). The employee then has 90 days from their receipt of the notice in which to file their lawsuit (emphasis to be explained below). Any lawsuit filed outside this period will be deemed untimely and dismissed – so employers tend to count those days carefully.

Issues with the EEOC’s Electronic Portal. Historically, the EEOC mailed all of its communications, including the initial notice of the charge, as well as a dismissal and NRTS. With any mailed communication, courts presume receipt three days after the date of mailing, although that presumption may be rebutted with other evidence (including a plaintiff’s sworn testimony that they did not receive the mailing).

As many employers know, however, the EEOC has mostly moved away from using actual paper notices and other communications related to an employee’s charge of discrimination. Instead, it has mainly relied on its electronic portal to transmit and receive information and documents from both the employer and the employee, as well as counsel for those parties, if any. This includes a dismissal and NRTS, although the EEOC typically follows up electronic notice with an actual mailed letter.

The use of this portal has run into glitches, however. For example, the EEOC’s initial emails to employers to notify them of charges and provide a link to the portal have often landed in spam filters or been directed to incorrect company officials who may ignore an email that they do not understand, with the result that the employer does not receive timely notice of the charge. Months may pass before the EEOC sends a physical letter with the charge. And now, it appears that employers cannot rely on issuance of a NRTS through the portal to start the 90-day filing period. Even more problematically, it appears that emailed notice to the employee’s attorney does not necessarily trigger the start of the period either.

The Court’s Ruling. In Hayes v. New Jersey Dept. of Human Services, the EEOC concluded its investigation, and it emailed the employee’s attorney that its “review of the available evidence does not establish a violation of Title VII” and that the EEOC “will issue you a Dismissal and Notice of Rights that will enable you to file suit in U.S. District Court within 90 days of your receipt of that Notice.” The EEOC then issued its dismissal and NRTS through its portal. The Third Circuit, however, found that “neither action provided notice sufficient to start the clock.” It determined that the email to the attorney “was not equivalent” to the NRTS because it did not state that the 90-day clock had started – only that the NRTS was forthcoming. And while the NRTS was uploaded to the portal, there was no direct communication to the employee or her attorney that the upload had occurred. Therefore, the upload did not start the clock either.

Given the lack of electronic notice, the Third Circuit then turned to the mailed notice, which is subject to the 3-day presumption of receipt. But here, both the employee and her attorney provided sworn statements that neither of them received the mailed notice, and they were not aware of the dismissal and NRTS until the attorney contacted the EEOC and obtained it – over five months later!

Lessons for Employers. So there are several lessons here for employers. First, regularly check spam filters for important correspondence, including from the EEOC. Second, and particularly for larger employers who deal with charges from time to time, it is helpful to ensure that the EEOC has the correct contact information for the company official designated to receive charges (which can be done the first time an employer uses the EEOC portal, as that information should be applied for future charges). And finally, a wise employer, upon receipt of the NRTS, may wish specifically to confirm that the EEOC investigator has actually emailed the employee (and counsel, if any) that the dismissal and NRTS have been uploaded to the portal.