Right to Sue Letter From the EEOC, Now What?
A Right to Sue Letter was issued from the Equal Employment Opportunity Commission("EEOC") or the Arizona Civil Rights Division ("ACRD"), and you are not sure what to do next. Here are some things to consider.
1. All Is Not Lost
A Right to Sue letter is issued when the agency cannot determine whether the employer discriminated against an employee. It does not mean a claim is weak. These agencies are often understaffed, and many claims are not fully investigated. Other investigations are not properly or thoroughly conducted. The agencies are to be neutral, especially when evaluating "he said she said" claims.
Some employees choose to request that the agency issue a Right to Sue letter immediately, so they don't have to wait for the agency to complete their investigation before filing suit as it can take an agency over a year to complete its investigation. Generally, we do not recommend requesting a Right to Sue letter because it may forego the possibility of the EEOC issuing a "Cause Determination."
2. What Is a Cause Determination?
When the ACRD or EEOC completes their investigation, they will issue either a Cause Determination or Right to Sue Letter. A Cause Determination means the EEOC found there was probable cause to believe an employee was discriminated against. This does not mean that the employee will prevail in a lawsuit or that they are entitled to any money. However, a Cause Determination can be very helpful evidence in a lawsuit. The employer may also be more likely to settle on favorable terms if the agency issues a Cause Determination. If they issue a Cause Determination, the agency will try to engage in mediation with the employer and employee to see if the claim can be settled. If mediation is unsuccessful, the agency will issue a Right to Sue letter, or in rare cases, the agency may file a lawsuit on the employee's behalf.
3. Pay Close Attention to Time Limits
If an employee receives a Right to Sue letter, the lawsuit must be filed within 90 days of the date the letter was received. If the lawsuit is not filed within 90 days, the employee will be forever barred from pursuing the claim.
4. Consult a Lawyer
Consult a lawyer before filing a charge of discrimination with either agency. The lawyer can help draft the charge and provide evidence to support the charge. This will increase the likelihood that of receiving a Cause Determination as opposed to a Right to Sue letter. It may be hard to convince a lawyer to take a case on a contingency-fee basis without a Cause Determination from the EEOC.
5. File the Lawsuit Yourself
Lawsuits can be filed without the help of a lawyer, but our legal system is complicated. Any pro-per will need to be familiar with the rules of civil procedure and the applicable law. Some lawyers may work "behind the scenes" by providing and assistance on an "as-needed" basis.
6. Try And Settle
Hire a lawyer to send a demand letter to see if settlement is possible. A quality demand letter may be sufficient to convince many employers to settle.
7. Are You Sure?
If an employee did not receive a Cause Determination, they should carefully consider whether or not to proceed with a lawsuit. Litigation is very expensive, and it can also be very time consuming and stressful for the employee. Understand the rules and what to expect and be 100% certain this is the best choice. A lawyer can discuss the process so enable employees to make an informed decision.
About the authors: Kraig J. Marton heads the employment law department at the Phoenix law firm of Jaburg & Wilk. He assists employers and employees in complying with the many laws affecting employers.
Jeffrey E. Silence is an attorney at Jaburg Wilk. He focuses his practice in employment law and represents both employers and employees to navigate these and other difficult issues.