Proposed Change in EEOC Regulations Concerning Right-to-Sue Notices for Public Sector Employees, 99-22
| Decision Date | 07 October 1999 |
| Docket Number | 99-22 |
| Citation | 23 Op. O.L.C. 224 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Proposed Change in EEOC Regulations Concerning Right-to-Sue Notices for Public Sector Employees |
CORNELIA T.L. PILLARD Deputy Assistant Attorney General Office of Legal Counsel.
The Equal Employment Opportunity Commission proposal to amend its procedural regulations to allow the Commission to issue a right-to-sue notice where it has failed to make a reasonable cause determination within 180 days after the filing of a charge against a state or local governmental entity is not permissible under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990.
MEMORANDUM OPINION FOR THE ACTING ASSISTANT ATTORNEY GENERAL CIVIL RIGHTS DIVISIONYou have asked for our opinion whether a change the Equal Employment Opportunity Commission (the "EEOC" or the "Commission") proposes to its procedural regulations is consistent with Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, 78 Stat. 241, 259 as amended ("Title VH"), and the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 328, as amended (the "ADA").[1] The Attorney General has the federal government's exclusive litigating authority in Title VII cases against state and local governmental employers. See 42 U.S.C §2000e-5(f) (1994). It has also been the Attorney General's role to issue right-to-sue notices in such cases, with one exception: under a current regulation, 29 C.F.R. § 1601.28(d) (1998), the EEOC may issue right-to-sue notices in cases in which it dismisses claims against state and local governmental entities based on specified grounds such as a Commission finding that there is no reasonable cause to proceed. See 29 C.F.R. §1601.18 (1998) (setting out grounds for dismissal). In letters to the Civil Rights Division dated May 12 and November 18, 1997, the Commission has proposed amending § 1601.18 of the regulations to create an additional basis for dismissal where the complainant has requested a right-to-sue notice and the EEOC determines that there is no law enforcement reason to continue processing the charge. By virtue of the current regulation permitting the EEOC to issue right-to-sue notices in governmental-entity cases resulting in dismissal, the proposed provision would allow the EEOC to issue a right-to-sue notice on request when it has failed to make a reasonable cause determination within 180 days following the filing of a charge against a state or local governmental employer.[2] You have raised the [ 225] concern that such a procedure violates the plain language of section 706(f)(1) of Title VII, 42 U.S.C. §2000e-5(f)(1), which provides that notification of the right to sue "shall" be provided by "the Commission, or the Attorney General in a case involving a government, governmental agency or political subdivision." For the reasons set forth below, we conclude that, although the issue is a close one, the EEOC's proposal to take over this function from the Attorney General is not permissible under Title VII or the ADA.
When Congress enacted Title VII in 1964, the statute applied only to private, non-governmental employers. Moreover, the EEOC had no authority to sue in its own name or to intervene in private suits; the sole governmental litigation authority under Title VII rested with the Justice Department. 2 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 1525 ("Lindemann"). In 1972, Congress extended Title VII to prohibit employment discrimination by "governments, governmental agencies, [or] political subdivisions." Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103, 104 (the "1972 amendments"). At the same time, Congress assigned to the EEOC most of the Department's former responsibilities under the statute for litigation against private sector employers. See 42 U.S.C. §2000e-6(c) (1994). With respect to governmental entities, however, Congress limited litigation authority to the Justice Department. See 42 U.S.C. § 2000e-5(f); Lindemann, supra at 1525-26.
In furtherance of Congress's new allocation of responsibilities between the EEOC and the Justice Department, the 1972 amendments set up a detailed procedural scheme for the processing of Title VII complaints. Under this scheme, all charges concerning either private or governmental employers must be filed with the EEOC. The EEOC is required to investigate all such charges and to make a determination in each case (within 120 days if "practicable") as to whether there is reasonable cause to believe the charge is true. Where the EEOC finds no reasonable cause, Title VII directs it to "dismiss die charge and promptly notify" the complainant and respondent of its action. 42 U.S.C. §2000e-5(b). Where the EEOC determines that there is reasonable cause to believe that unlawful discrimination occurred, the statute requires the Commission to seek voluntary compliance through conciliation. Id. The statute sets no time limit on conciliation efforts.
Up to the conciliation stage, Title VII draws no distinction between complaints against private and governmental employers. Failure to reach a conciliation agreement, however, leads to a diverging allocation of further enforcement responsibilities. While the Commission may, upon the failure of conciliation, bring a civil action against "any respondent not a government, governmental agency, or political [ 226] subdivision, " it may "take no further action" with respect to a complaint involving a governmental entity, and must ''refer the case to the Attorney General who may bring a civil action."[3] 42 U.S.C. § 2000e-5(f)(1). In a case involving a governmental entity, if die Justice Department has not filed a civil action within 180 days of die filing of die complaint with the EEOC, [4] die complainant is entitled to a "right-to-sue" letter, upon receipt of which the complainant has 90 days to file his or her own suit in federal court. See 42 U.S.C. §2000e-5(f)(1); 29 C.F.R. § 1601.28. Specifically, the pertinent sentence of section 706(f) of the statute provides:
If a charge filed with die Commission pursuant to subsection (b) of this section is dismissed by die Commission, or if within one hundred and eighty days from die filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which die person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after die giving of such notice a civil action may be brought against the respondent named in the charge (A) by die person claiming to be aggrieved or (B) if such charge was filed by a member of die Commission, by any person whom the charge alleges was aggrieved by die alleged unlawful employment practice.
42 U.S.C. §2000e-5(f)(1) (emphasis added). The question you have presented requires us to determine whether die proposed regulation is consistent with this statutory language.
When it amended Title VII in 1972, Congress was well aware of die EEOC's large backlog of cases and resulting delays in die processing of charges. See Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 369 & n.25 (1977). Tide VII nonetheless does not specifically set forth die procedure to be followed when the EEOC has failed to make a reasonable cause determination within 180 days regarding a complaint against a governmental employer, and thus has yet either to dismiss [ 227] the charge for want of reasonable cause or refer it to the Justice Department. Under current practice, if a charge against a governmental entity has been pending with the EEOC for more than 180 days and the complainant requests a right-to-sue notice, the Commission refers the request to the Justice Department, which in turn issues the notice. The EEOC now seeks to amend its regulations to eliminate the referral requirement by giving itself the authority to dismiss charges in these circumstances. We conclude that section 706(f) gives the Attorney General exclusive authority to issue right-to-sue notices in cases against governmental entities, and thus precludes the EEOC's proposed regulatory amendment.
Title VII does not expressly address the question of which agency should respond to a complainant's request for a right-to-sue letter where the EEOC has not made a reasonable cause determination. We believe that the better reading of section 706(f)(1) gives the Attorney General the exclusive authority to issue right-to-sue letters under such circumstances in cases involving state and local governmental employers. This interpretation comports with the language and punctuation of the relevant clause. Title VII's structure and purpose also support this reading. Given Title VII's consistent assignment of sole litigation authority to the Attorney General in governmental-entity cases, and the fact that only the Attorney General can make the decision whether to file a civil action against a state or local governmental employer, it is logical to read the statute as conferring on the Attorney General the exclusive authority to notify complainants of their right to sue when the federal government has not filed a civil action against a governmental employer within...
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