For companies accused of discrimination against employees, resolving the case often involves a long and stressful wait. Once employees file a claim with the U.S. Equal Employment Opportunity Commission (EEOC), the investigation can take a year or even longer. In rare instances, the EEOC will find then find sufficient cause and sue the employer. But in the overwhelming number of cases, the government agency will send the employee a "right-to-sue" letter and give the employee 90 days to file a lawsuit.
That process may drag on even longer now that the EEOC has temporarily suspended right-to-sue notices. This stops the clock on the process, now that many businesses have shut down in the midst of a global pandemic.
"I see this new ruling slowing down things even further and making it even harder for employers to resolve the matter quickly," said Scott Warrick, a Columbus, Ohio-based employment attorney and author of Solve Employee Problems Before They Start (SHRM, 2019).
But this doesn't mean the EEOC will stop taking on new cases or investigating existing ones. "The EEOC is still accepting new charges. It has not halted any activity. Since people may not get an appointment with a lawyer, they are making sure no one runs into statute of limitations during a national emergency," said Ann-Marie Ahern, a labor and employment lawyer with McCarthy, Lebit, Crystal and Liffman Co. in Cleveland. "It is really just temporary. I think it's a very good policy. It maintains the status quo and avoids confusion."
Employees still have the right to contact the EEOC and ask for a right-to-sue letter, which would close their case with the federal agency and allow them to move forward with filing a suit.
David Barron, an employment lawyer with Cozen O'Connor in Houston, said most of the companies he represents are not concerned about the ruling yet, but that could change if the hold continues for many months. "It's a pro-employee move. Most employers won't be [bothered] at all if they do it for 30 days. But if they do it for six months, they will be screaming bloody murder. Imagine you have a pending case, you have spent money responding to it, and the EEOC is not going to give you a ruling for a while longer. It is hanging over the company's head, and they would like to move on."
Slowing down an already-glacial investigative process during a pandemic makes it even more important for employers to keep written documents of the ways they are handling discrimination complaints, Warrick said.
"Given these extended limitations, what are people going to forget?" he said. "Who says these supervisors and witnesses will still be there? Who says the texts on their phones are going to be there?"
Warrick said company officials should document their responses to accusations of discrimination, including all related conversations and coaching. "If someone has a temper problem, did you talk to them about it? Did you write it down? When you don't have things documented, I have to piece it all together, and it will be very expensive for you. If you have to refresh the memories of the witnesses before going to court, it will disrupt your business for the next year."
He also said executives have to take action toward toxic managers and provide coaching. "If it's a substantiated and serious offense, such as sexual harassment or racial discrimination, companies should go straight to a written warning or maybe termination. But too often, they say, 'Oh that's just Bob. He is really brilliant.'''
People who have been laid off recently because of widespread business shutdowns may also refuse to testify on an employer's behalf. Or they may file their own claims with the EEOC down the road.
Ahern said she is already getting calls from employees who suspect they were laid off because of their age or the fact that they have a disability that would make them more vulnerable to the virus than a younger, healthier person.
"This virus affects every part of employment law. Are you targeting people because you think they are past their prime? Are you making decisions based on who is likely to take Family Medical Leave Act (FMLA) because their kid's school is closed? They might file a FMLA retaliation claim," she said.
"Employers have to step back and make sure they are considering all aspects of employment law such as age discrimination, FMLA, and the Americans with Disabilities Act as they implement these decisions. This is a landmine for employers."
Cristina Rouvalis is a freelance writer based in Pittsburgh.