Handling the EEOC “Right to Sue” Letter

The following is some general information about “right to sue” letters from the Equal Employment Opportunity Commission and analogous state and local anti-discrimination agencies (known by statute and regulation as “fair employment practices agencies” or FEPA.)  Additional information is available here on the law office website for Bruce Godfrey.  None of this is legal advice; if you want legal advice, you should hire a lawyer.  I am not your lawyer; instead, print this out, take this post to your lawyer and ask her or him what errors it may contain and how you should proceed in YOUR case.  Do not rely on this article; doing so could KILL your case and you will have only yourself to blame.  Instead, again, contact an attorney, print this post out and ask your attorney in attorney-client consultation to point out how she views your case as different (if she does) from what is discussed below.

1)  A “right to sue” letter from the EEOC after the filing of charges within its jurisdiction, or from most (not all) state or local agencies that perform similar investigatory functions, starts a very short clock by which to file suit for most (not all) discrimination or retaliation claims in a court of proper jurisdiction.  As soon as you get the right to sue letter, you MUST start looking for an attorney if not before.  A better title for the “right to sue” letter might be “YOUR RIGHT TO SUE IS ABOUT TO **DIE**” letter, but the EEOC doesn’t really go in for drama.

2)  Under some conditions, you may be able to sue in more than one federal or state jurisdiction (i.e. you have a choice of “forum”) or more than one court within a given jurisdiction (usually referred to as “venue.”)  Consult your attorney about how this applies in your case.

3)  In some jurisdictions, you may have some claims that exist on different timetables from those of the right to sue letter.  Indeed, it is possible that a claim under some federal, state or local laws may expire long before you have a right to sue on other claims.    Proper analysis of differing legal theories and “clock management” are tasks for your attorney, which I am not.

4)  Not all claims of discrimination require a “right to sue” letter; some jurisdictions allow an immediate suit under local law under different theories and some federal statutes use a different timetable for filing suit.

5)  Sometimes, the issuance of a right to sue letter may give rise to negotiations on claims with an employer.  Handling the timeframe of the right to sue letter is part of good lawyering.  If you would like your attorney to commence negotiations with your former or current employer, you should first hire one.

6)  In many local/state cases and most federal cases – but NOT all – the right to sue letter expires 90 days after the employee receives it.  If you receive it late in the process (e.g. through a mail delay or other delay) you should absolutely not wait but should contact an attorney IMMEDIATELY to avoid the expiration of the deadline.

7)  A right to sue doesn’t constitute a “granting” of a right to sue by the EEOC or local agency so much as an “activation” of the right to sue after the exhaustion of the “administrative remedy.”  The EEOC cannot “stop” anyone from suing, but can issue a finding of reasonable/probable cause (“reasonable cause” is the preferred term but one also sees “probable cause” as an informal substitute) or a finding of no cause.  Even if there is a no cause finding, a worker may file suit on a no-cause right to sue letter though most attorneys will be (understandably) wary of taking on a case where the EEOC found no cause.

8)  For the love of Pete, don’t tarry until the last two weeks of the right to sue letter to contact an attorney.  In such cases, your attorney will inevitably be rushing and may be reluctant to take on the professional liability for the case.  If you have foolishly waited, call an attorney or two or ten today; the only thing more foolish than waiting is waiting even longer.  Beware: this isn’t college and you cannot turn your lawsuit in late as if it were a late term paper.  Timeliness is critical.

Did I mention that you might call an attorney to avoid blowing the deadline(s), and that I am not your attorney?  Good luck with your attorney (whoever she may be) and your case.

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