Did you know that at the beginning of 2016, the EEOC rolled out Phase I of its Digital Charge System, which provides an online portal system for employers to access and respond to a Charge of Discrimination? If you didn’t know, you are not alone. Many employers have been surprised to receive an email from the EEOC stating that a Charge has been filed and providing a password to access the EEOC’s secure online portal. The email provides a deadline for the employer to log in to the portal. Once logged in, the employer may view and download the Charge, respond to mediation requests and upload position statements it creates for the EEOC to review. (The EEOC asserts that information uploaded to the portal are encrypted and protected by proper security controls.) The EEOC’s plan is to no longer send hard copies of these documents to employers.
This change is in response to Executive Order 13571 which requires federal agencies to expand online services. The EEOC hopes this digital system will increase responsiveness, streamline the enforcement system, save resources and provide increased accountability and coordination. However, more than six months into this change many employers are experiencing difficulties with this system.
The EEOC sends its electronic notice of the Charge to the employer’s email address it currently has on file. If this address is no longer a valid or proper contact, the EEOC is relying on employers to contact the EEOC and provide a correct email address for future Charges. (If the EEOC does not have any email address on file, a paper notice will be mailed to the address of record.) This new process has led to confusion and delay, with employers often not receiving actual notice of the Charge until after the deadline to respond to a request for mediation or even to submit a position statement has already passed.
The EEOC claims that its digital charge system “will generate a notice to EEOC staff after 10 days if a[n employer] has not taken any action, meaning the [employer] has not logged into the system.” It is unclear, however, if the 10 days is after the deadline to submit a position statement or after the initial time for the employer to log in to the portal. A local EEOC representative will supposedly attempt to re-serve the notice of the Charge if no action is taken through the portal, but it remains unclear if this re-service will be by electronic means or by mailing a hard copy.
While few employers like to proactively reach out to the EEOC, with this new Charge system it is important to consider notifying your local EEOC offices where you have employees of the proper email address of the person who you want to receive Charges, and to update any changes to this contact information. Otherwise, notices may disappear into cyberspace and never be received.
Why bother keeping the contact information updated? Well, ensuring prompt receipt of an EEOC Charge can be significant for several reasons. First, while an employer generally has thirty days upon receipt of a Charge to file a position statement, the Portal provides a set deadline. A potential delay in receiving the email notice may leave the employer with less than thirty days. (While employers or their counsel can seek extensions, these are not guaranteed.) Most significantly, it is vital for employers to know when a current employee files a Charge to avoid taking any inadvertent adverse employment action which could be construed as retaliation. Plus, the sooner an employer learns of a Charge, the sooner any investigation may be conducted to resolve issues that might still exist, especially when the Charging Party is a current employee.
So employers, be on the lookout for any emails from the EEOC, update your SPAM filters accordingly, and consistently notify the EEOC of any contact information changes for who should receive Charges at your company. The Charge is coming either way; better to actually receive it and know about it as soon as possible.