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On February 21, 2019, the EEOC proposed a rule to expand the use of its electronic portal; clarification of the meaning of a “No Cause” dismissal and the filing deadline for a charge, which is filed in a state with a deferral agency; and adding language to the Age Discrimination in Employment Act (“ADEA”) regulation.

For several years, the EEOC has been utilizing digital technology in its charge process. The EEOC typically sends a charge via email to the employer. The employer is then required to submit its response through an electronic portal. As part of the rule change, the EEOC, charging party, and the employer would all be permitted to communicate and exchange documents utilizing the electronic portal. Note: Employers need to take precautions when submitting documents through the EEOC electronic portal. For example, all Social Security Numbers should be redacted.

As a further part of the proposed rule change, the EEOC seeks to modify the “Dismissal and Notice of Rights” form. In the notice of the proposed rule change, the EEOC expresses a belief that its “No Cause” determination has sometimes been misunderstood to mean that the charging parties’ claims are totally without merit. The EEOC further states that even though it has decided not to proceed further with its investigation that there is a possibility that “private proceedings or litigation may lead to court findings of discrimination or settlements favorable to charging parties.” The EEOC proposes to revise the Dismissal and Notice of Rights form to say:

The EEOC issues the following determination: Based on its investigation, the EEOC has sufficient information to conclude that further investigation is not likely to result in a cause finding. This does not certify that the respondent is in compliance with the statutes. The EEOC makes no finding as to the merits of any issues that might be construed as having been raised by this charge.

In addition, the proposed rule seeks to clarify the filing deadline for charges filed in states which have a deferral fair employment agency that lack jurisdiction over the applicable law to the charge. The EEOC is seeking under the new rule to make it clear that a charging party will have 300 days after the last alleged act of discrimination to file a charge if the state law enforced by the deferral agency “covers the same general basis or category of discrimination,” which is alleged by the charging party. The rule change would make the deadline the same as it is for other parties who file charges in which the state deferral agency has jurisdiction over the alleged unlawful employment practice. The current law is that charging parties have 180 days after the last alleged act of discrimination to file an EEOC charge if there is no state deferral agency in their jurisdictions.

Finally, the rule seeks to add language to the ADEA regulation to clarify that a charge can be filed by the person claiming to be aggrieved or on his or her behalf by any person, agency or organization. The charge does not have to identify the person on whose behalf it is made.

Employers and other interested parties can make comments on the proposed rule through April 23, 2019. Upon the issuance of a final rule by the EEOC, the firm will issue an employer alert, which outlines the change

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