An analysis of the EEOC'S issuance of early right-to-sue letters: does it promote judicial efficiency or encourage administrative incompetence?

• Author: Szkodzinski, Michael A.
• Position: Equal Employment Opportunity Commission

INTRODUCTION

The Equal Employment Opportunity Commission (EEOC or "Commission") receives nearly 60,000 charges of employment discrimination each year under Title VII of the Civil Rights Act of 1964. (1) Title VII prohibits discrimination on the basis of race, sex, religion, or national origin. (2) The grievance process for employees who believe they have been victims of discrimination is complicated by the dual nature of these complaints: claims first must be made to the EEOC before a plaintiff may have his day in court by filing a complaint in the appropriate United States district court. (3)

Assuming state remedies (if applicable) have been exhausted, the plaintiff must file a charge with the EEOC within 180 days of the alleged unlawful practice. (4) If the EEOC is unable to achieve conciliation with a private employer within thirty days, the Commission may bring a civil action in United States district court. (5) A very small percentage of cases are resolved in this manner. (6) If the Commission does not bring suit, it must notify the claimant:

If a charge filed with the Commission ... is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge ... the Commission has not filed a civil action under this section ... or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission ... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge ... by the person claiming to be aggrieved.... (7) This Comment addresses the question of when the EEOC can give such notice--commonly called a "right-to-sue letter" because it gives an employee the right to file a lawsuit in United States district court--to a claimant. Specifically, must the EEOC wait until the 180-day period has elapsed, or may it authorize an "early" suit prior to the expiration of the statutory period?

In several jurisdictions, the EEOC has been unable to act on the charges within the 180-day period and has issued right-to-sue letters prior to the expiration of that time period. One interpretation of the statutory provision is that the EEOC has exclusive jurisdiction within this 180-day period and the plaintiff may not file suit until this period has elapsed. (8) The contrary interpretation is that the Commission has the ability to cede its jurisdiction and allow a plaintiff to sue prior to the expiration of the 180-day period. (9)

In Part I of this Comment, I discuss the cases holding that the EEOC has exclusive jurisdiction during the statutory period and requiring remand to the agency before a complaint may be filed in United States district court. In Part II, I analyze the cases holding that a plaintiff may sue upon receipt of a right-to-sue letter prior to the end of the 180-day period. In Part III, I examine the legislative history of the applicable statutory provisions. In Part IV, I discuss which of the two interpretations of the EEOC's jurisdiction is more economically efficient and conclude that there is no clear answer. In Part V, I suggest two alternatives to those interpretations that could make resolution of employment discrimination cases even more efficient--one giving the EEOC a much larger role in these cases and the other eliminating the role of the Commission altogether.

1. MARTINI AND OTHER CASES SUPPORTING REMAND TO THE AGENCY FOR EARLY ISSUANCE OF A RIGHT-TO-SUE LETTER

   In 1999, the Court of Appeals for the District of Columbia Circuit was the first appellate court to hold that the EEOC may not issue an early right-to-sue letter. In Martini v. Federal National Mortgage Ass'n, the D.C. Circuit vacated and remanded a judgment in favor of plaintiff Elizabeth Martini for $903,500 on sexual harassment and retaliation claims following a jury trial because the EEOC had granted a right-to-sue letter only twenty-one days after she had filed her charge with the Commission. (10) The court "conclude[d] that the EEOC's power to authorize private suits within 180 days undermines its express statutory duty to investigate every charge filed, as well as Congress's unambiguous policy of encouraging informal resolution of charges up to the 180th day." (11) Although some district courts had held that early right-to-sue letters were not permissible, this was the first circuit court to make this decision and thus invalidate the regulation issued by the EEOC. This decision in Martini created a circuit split that provides an important issue for resolution by the United States Supreme Court.

   The EEOC had issued the following regulation based upon its interpretation of the provisions of 42 U.S.C. [section] 2000e-5(f)(1):

   When a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued ... the Commission may issue such notice ... at any time prior to the expiration of 180 days from the date of filing the charge with the Commission; provided, that the District Director [or other delegated officials] has determined that it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge and has attached a written certificate to that effect. (12) A court interpreting an administrative agency's construction of a statute uses the two-step inquiry mandated by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (13) The court must first ask "whether Congress has directly spoken to the precise question at issue." (14) If so, then the unambiguous intent of Congress must be carried out by the reviewing court. (15) But "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." (16) The Martini court found that "Congress clearly intended to prohibit private suits within 180 days after charges are filed," (17) and it therefore held that the agency's interpretation that allowed for early right-to-sue letters violated the clear, unambiguous intent of Congress and had to be overruled under Chevron.

   In deciphering the intent of Congress not to allow early private suits, the Martini court relied on the provision prescribing the EEOC's duties that requires a prompt determination--within 120 days if practicable. (18) The court found that "the Commission's duty to investigate is both mandatory and unqualified." (19) Further, it stated that Congress "`hoped that recourse to the private lawsuit will be the exception and not the rule.'" (20) Not allowing early private suits should put pressure on the EEOC to improve its investigatory procedures or perhaps to ask Congress for additional funding so that it would be able to complete its statutory duties. (21)

   The United States Supreme Court, in dictum, prior to the EEOC's promulgation of 29 C.F.R. [section] 1601.28, reached the same conclusion as the Martini court when seven Justices agreed that a plain reading of the statute compels the finding that early suits prior to the expiration of 180 days should not be permitted. In Occidental Life Insurance Co. of California v. EEOC, the Court stated, "[A] natural reading of [the statute] can lead only to the conclusion that it simply provides that a complainant whose charge is not dismissed or promptly settled or litigated by the EEOC may himself bring a lawsuit, but that he must wait 180 days before doing so." (22) The Court considered a claim by a defendant that the 180-day period was a statute of limitations and the EEOC could not file a charge beyond the expiration of this time. (23) The Court rejected this assertion and, without knowledge or consideration that this issue would later become relevant, found that the EEOC must wait 180 days before giving permission to a plaintiff to file a charge in United States district court. (24)

   After the EEOC promulgated 29 C.F.R. [section] 1601.28(a)(2), a district court used similar reasoning to that of the Supreme Court in Occidental Life. In Montoya v. Valencia County, the court held that, even exercising the deference to the Commission required by Chevron, the EEOC's interpretation was "patently inconsistent with section 2000e5(f) (1)." (25) The court therefore rejected the allowance of an early suit and subsequently granted the defendants' motion to dismiss the case. (26) The court expressed sympathy for the EEOC's difficulties in carrying out its duties but suggested that the proper way to resolve the lack of funding and inability to investigate all charges within the statutory time limit was to ask Congress to amend the statute or increase funding, and that unilateral action by the agency in issuing a regulation contrary to its underlying statute was not the solution. (27)

   In New York v. Holiday Inns, Inc., the district court noted the attractiveness of allowing plaintiffs to sue prior to the expiration of the time period when the EEOC is backlogged, but quoted the dictum from Occidental Life stating that it was Congress's intent that 180 days must elapse before charges could be filed in district court. (28) The court noted that despite the apparent "futility of forcing victims of discrimination to `mark time' when it appears that the EEOC will be unable to investigate their charges or reach conciliation proceedings within the 180-day period," arguments for allowing early suits should be addressed to Congress rather than to the judiciary. (29)

   Other courts have noted that the purpose of the 180-day period is to induce conflict resolution through conciliation within the EEOC rather than litigation. (30) In 1980, Judge Sofaer of the Southern District of New York looked at the problem from a separation of powers perspective in Spencer v. Banco Real S.A.: The jurisdiction of the federal courts should not be expanded by judicial decision or by agency regulations, but...