Is the EEOC's new filing system too little, too late?
By Charlie Shafer
Welcome to the year 2024—the era of Apple Vision Pro glasses, self-driving cars, ChatGPT, and TikTok. With so much technology at our fingertips, one would hope that some piece of it would make the job of an employment attorney easier. Although there have been advancements, we can do better, and it should start with the U.S. Equal Employment Opportunity Commission (the “EEOC”).
The EEOC is an agency responsible for enforcing anti-discrimination laws in employment.1 Before the EEOC can take any remedial action, an employee must first file a charge. Then, the EEOC investigates to determine whether the employer violated federal employment laws. If the EEOC determines that an employer violated the law, the EEOC can generally: (1) try to resolve the dispute on the employee’s behalf; (2) commence a lawsuit against the employer; or (3) inform the employee that they can commence a lawsuit themselves.
To file a charge with the EEOC, an employee must first contact the Commission to initiate the process, even if they are represented by an attorney. Filing a charge with the EEOC can have drastic implications for an employee’s case. If, for example, an employee fails to check an appropriate box on the application, or properly describe their situation, the relief available to them could be substantially limited. So, it is advisable for employees to consult with legal counsel prior to filing a charge to ensure that they fill out the charge form correctly.
For attorneys representing employees in discrimination matters, the inability to file charges electronically is burdensome. For many years, attorneys could only file charges on behalf of a client via mail, fax, or hand delivery.2 In practice, this process occurred primarily by mailing the Commission written submissions. It was only on December 13, 2023, the EEOC announced that it is launching an online portal for attorneys to file charges—and only charges—electronically with the EEOC.3
Too Little, Too Late
The EEOC’s announcement reminds this employment attorney of an episode of The Office where—spoiler alert—Michael Scott promises everyone a huge surprise at the end of a difficult day, only to return with a last-minute, last-ditch surprise: ice cream sandwiches.4
The EEOC can and should do better. Allowing legal counsel to file a charge electronically should have been possible twenty years ago. The EEOC could, at a bare minimum, allow legal counsel to view and file everything related to an employment dispute electronically in one portal. The portal should not be limited to filing a charge itself.
It is unclear what capabilities the portal will have or how user-friendly it will be. Employees experiencing discrimination in the workplace have enough to worry about already; interacting with an outdated filing system should be the least of their concerns, especially when represented by counsel.
With all the technology at the EEOC’s disposal, their new portal, while a step in the right direction, is too small a step. The Commission has delivered employment lawyers the technological equivalent of an ice cream sandwich.
Charles (Charlie) Shafer represents clients in matters involving civil litigation, class action litigation, employment law, and trust and estate litigation, across state and federal court. Super Lawyers Magazine recognized him as a Minnesota Rising Star in 2022 and 2023. Charlie is the senior chair of the RCBA New Lawyers’ Section and sits on the RCBA’s board of directors.
Notes
1. See gen. https://www.eeoc.gov/overview#:~:text=The%20U.S.%20Equal%20Employment%20Opportunity,%2C%20and%20sexual%20orientation)%2C%20national
2. https://www.eeoc.gov/newsroom/eeoc-launches-e-file-attorneys
3. Id.
4. https://en.wikipedia.org/wiki/Health_Care_(The_Office)#:~:text=%22Health%20Care%22%20is%20the%20third,5%2C%202005%2C%20on%20NBC.