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Seyfarth Synopsis: Thirty days into the Federal government shutdown, few personnel of the U.S. Equal Employment Opportunity Commission ("EEOC") are available and operations have been slashed. However, this does not mean that employers can put aside all EEOC-related concerns until the government opens again. New charges continue to be filed—though employers remain in the dark about the content or volume of potential claims—and deadlines continue to apply. While this pause may feel like a temporary reprieve, it is important for employers to stay alert and consider how their charge activity will be impacted by a continued shutdown.
The EEOC's Contingency Plan
The EEOC published a contingency plan to be implemented in the event of a shutdown. Per the plan, nearly 93% of its workforce has been furloughed, and the EEOC has suspended all "nonessential" functions, significantly curtailing its operations. These "nonessential" functions include investigations into discrimination charges, as well as mediations, hearings, and outreach and education events. Likewise, Freedom of Information Act requests will not be processed, public inquiries will not be responded to, and the agency will not file new cases or litigate—except in instances where no stay or extension has been granted by the court for pending matters.
On the other hand, the funding lapse does not pause the 180- or 300-day statutory deadlines for filing a charge of discrimination. Thus, ongoing "essential" activities include critical functions related to charge intake and processing, overseen by the Office of Field Programs ("OFP"). Specifically, the OFP has a small number of personnel to assess and prioritize cases requiring immediate attention to ensure complainants do not miss their statutory deadlines.
Notably, the funding lapse also does not impact timelines for those charging parties who received notice of their right to sue before the shutdown began. The 90-day deadline for charging parties to file a lawsuit in federal court continues to run during the shutdown.
Impacts for Employers
The fact that complainants remain able to file charges with the EEOC means employers should prepare for the possibility that they will receive more notices of charges filed with and investigated by state agencies, which remain open, or an atypical influx of charges filed with the EEOC when the shutdown ends.
The ongoing charge intake without having EEOC personnel available to investigate and close charges also will only exacerbate the pre-existing backlog of cases before the EEOC. In addition, the longer the shutdown continues, the more likely it becomes that the EEOC will lose more employees to attrition, slowing charge processing even further. The ripple effects are difficult to forecast, but possibilities include more investigations handed to state agencies, longer investigation times if the EEOC decides its aim is to resolve charges on the merits, or a shorter timeline before right to sue letters are issued if the EEOC decides its aim is to trim its charge backlog.
Employers also should bear in mind that the contingency plan does not specify what employers' obligations are with respect to existing deadlines to respond to charges of discrimination. Given this, employers should consider adhering to existing deadlines for responding to charges of discrimination, or submitting formal extension requests through the EEOC's Respondent Portal to memorialize that the employer will be taking additional time in light of the ongoing shutdown.
Conclusion
The government shutdown has significantly impacted the operations of the EEOC, but employers should remain vigilant. For charges resolved by a notice of right to sue letter before the shutdown began, employers should be aware that charging parties are subject to the same deadlines for file their claims in Federal court. For pending charges, employers should consider either meeting response deadlines that already were set, or filing extension requests to preserve their rights. In addition, the EEOC continues to accept new charges, and employers will have no visibility to the volume or content of those charges until the shutdown ends and EEOC operations fully resume. Employers should watch for notices from state agencies stepping in to fill the void left by the EEOC, ad an influx of charge activity when the shutdown ends.
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