On February 22, 2019, the U.S. Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking announcing its intention to update its online charge system. The 60-day public comment period has begun, and stakeholders will have until April 23, 2019 to provide comments that the EEOC will consider before issuing its final rule.

The rule aims to update the charge of discrimination process handled by the EEOC. This process is the required first step a party must pursue in order to charge that an employer committed workplace discrimination in violation of federal law. The EEOC must investigate such charges before an employee can file suit for employment discrimination in federal court.

Although a “new” proposed rule, the rule, in part, largely formalizes practices the EEOC has already implemented for handling the charge of discrimination process. For example, the proposed rule would for the first time officially acknowledge that the EEOC, charging parties, and employers can submit information and documents electronically, which is a practice that the EEOC has used for years. The proposed rule would also revise the language on “no-cause” determinations issued by the EEOC to clarify that such a determination does not mean the EEOC ruled in the employer’s favor, which has always been the case.

Other than formalizing current practices, the proposed rule would also allow the EEOC to be able to decide on its own to reconsider charges resulting in no-cause findings. Currently, after the EEOC issues a no-cause finding, the plaintiff has only 90 days to decide whether to sue the employer in federal court. Under the new rule, the EEOC could decide on its own to reconsider a no-cause finding even after the 90-day period to sue has expired, and then the plaintiff would get an additional 90-day period to sue once the EEOC issues its reconsidered decision.

The final rule will depend on how the EEOC decides to tailor the language based on comments from the public. Chilivis Grubman will continue to monitor this proposed rule as it goes through the notice and comment process.