By Kyle Perry
Employment discrimination claims have gone digital. Following a brief Pilot Program, on January 1, 2016 the Equal Employment Opportunity Commission (“EEOC”) implemented the Digital Charge System nationwide. The move to online filing is meant to ease the administrative burden created by the massive number of charges filed—approximately 90,000 per year.
Upon the filing of a charge, the EEOC will submit an electronic notice to the email address on file with the EEOC. (See Sample Charge below). According to the EEOC, hard copies of the charge will not be sent to the employer. If the EEOC does not have an email address for the respondent employer, a paper notice instructing the employer to log onto the digital portal to address the specific charge will be mailed to the address on file with the EEOC. Charges are numbered and each EEOC charge has a unique password. The vast majority of discrimination charges will be processed through the Digital Charge System going forward. However, if an employer does not have the technological capability to receive or submit information online, the employer may request alternative forms of communication through the EEOC.
Employers should be aware of a few pitfalls regarding the Digital Charge System. First, if the EEOC has an email address on file for an employer, that address is the likely recipient of a charge. Employers should ensure the EEOC has up-to-date contact information and the email address designated to receive any EEOC charges is one that will survive employee transitions that may occur. As an added protection, the EEOC allows employers to designate a legal representative to receive notice of filed charges. Second, the Digital Portal permits the employer to:
- View the Charge;
- Review an Invitation to Mediate and Respond;
- Submit a Position Statement and attachments to the EEOC;
- Submit a Response to a Request for Information to the EEOC; and
- Communicate with EEOC representatives.
In the past, submissions from the employer to the EEOC were not automatically provided to the Charging Party and their counsel as a matter of course. However, under a new rule issued this year, Charging Parties have immediate access to the Employer’s Position Statements and “non-confidential attachments” upon request. Therefore, it is essential that great care is taken in connection with Position Statements and any documents submitted. Any confidential documents submitted to the EEOCshould be labeled as “confidential” and produced in a separate attachment.
The move to a Digital Charge System presents a host of new challenges for employers to navigate. In an effort to facilitate this transition, we recommend the following initial steps:
- Determine which email address should receive digital notice of an EEOC charge and make sure this email address is on file with the EEOC. Ensure this email address is one that will survive employee turnover. Additionally, Spam filter settings should be adjusted accordingly.
- Become familiar with the basics of the EEOC’s Digital Charge System. The online portal allows employers to view charges and is another manner to periodically review whether any charges have been filed.
- Designate a legal representative to receive notice of EEOC charges filed against your organization.
The filing of an EEOC charge can have lasting implications for your business. It is essential that you receive prompt notice of a pending charge and respond accordingly. As with any new system, it is likely the Digital Charge System will experience some growing pains. Should you have any questions about the EEOC’s move to the Digital Charge System or other related employment matters, please contact a member of our Employment Law team.